election law reports, vol. lvii(1981)

PECI.45.LVH.GOVT. OF INDIA 500-1981 (DSK.I).

( ELECTION LAW REPORTS

* Containing cases on Election Law decided by the Supreme Court and the£ High Courts of India and the Opinions of the Election Commission

?

Vol. LVII* ;

™ Editor :R. K. P. SHANKARDASS, M.L., LL.B. (Cantab.)

Advocate, Supreme Court.

57 E.L.R.

* Published under the authority of Election Commission of India by the,' Controller of Publications, Civil Lines, Delhi and Printed by the Manager,

Government of India Press, Nasik.

Price: (Inland) Rs. 1500 (Foreign) f 1-75 \or $ 5 40 Cents'.

1—345 Elec. Com./ND/81

" ' I

\

ICONTENTS

PAGES

I. Table of Cases Reported . (i)

II. Table of Cases Cited (iii)-(vii)

III. Report of Cases 1-397

IV. Index 399-400

m

ELECTION LAW REPORTS

VOLUME LVIITABLE OF CASES REPORTED PAGE

1 Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India) . 152

2 Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India) . 162

3 Kanwar Lai Gupta v. AmarNath Chawla and ors(Supreme Court of India) 1

4 Shri Raj Narain v. Smt. Indira Nehru Gandhi (Allahabad High Court) 49


" VOLUME LVII

TABLE OF CASES CITED PAGES

P. R. M. Abdul Huq v. Catpadi Industries Ltd. and another A.I.R. 1960 Madras 33, 122482

Abeyesekera v. Jayabilake 1932 A.C. 260 166,167,173,263

Adam Clatfon Powell v. John W. Me. Cormack"(23L. Ed. 2d 491) . . • 166,173,177

Amarjit Kaur v. Pritam Singh & Ors. A.I.R. 1974 S.C. 2068 . . . . 366Ambika Saran Singh v. Mahant Mahadev Nand Giri 41 E.L.R. 183 . . 53, 129Ammisun-Nisa Begum and others v. Mahboob Begum A.I.R. 1955 S.C. 352 . 356K. Anandan Nambiar and another v. Chief Secretary Government of Madras & 166,184,

others (1966) 3 S.C.R. 406 185, 214,276

Anant Mills v. State of Gujarat (1975) 2 S.C.C. 175 167,239Ashbyv. White (1703)14 St. Tr. 695 167,278Attorney General v Prince Earnest Augustus of Hanover (1975) A.C. 436 . . 387Attorney General for New South Wales v. Perpetual Trustee Co. Ltd. and others 53, 121Babubhai Vallabhdas Gandhi v Pilloo Homi Modi 36 E.L.R. 108 . . . 52,63,

70, 167,292

Bahori Lai PaliwaJ v. District, Magistrate Bulandshehar A.I.R. 1956 All. 511 . 53, 119Baijnath Singh Vaidya v. Ravindra Pratap Singh 36 E.L.R. 327 . . . 5 2 , 8 5 ,

316Barsi Munacipality v. Lakmanya Mills A.I.R. 1973 S.C. 102 L . . . 5 3 , 89Barry v. United States'Ex. Rel. Cunningham 73L Ed. 867 . . . . 167,255Basanta Chandra Base v. The King Emperor 1944 FCR 295 . . . . 166, 176

367Basheshar Nathv. Commissioner of Income Tax (1959) 1 S.C.R. 528 . . 167,271Bengal Immunity Co. Ltd. v. The State of Bihar and others (1955) 2 S.C.R. 603 375In re. Berubari Union and Exchange of Enclaves (1960) 3 S.C.R. 250 . . 387The Berwick Upan Tweed Division ofthe County of Noithv mberl and Case (VII 53, 110

O'M & Hpl).Bhartender Singh v..RamSahai Pandey and others A.I.R. 1972 M.P. 176 . 52,87,

316Biresh Misra v. Ram Nath Sarma and others 17 E.L.R. 409 . . . . 5 2 , 70,

167, 313Bishambar Dayal v. Raj Rajeshwar and another 30 E.L.R. 363 . ., . 52 ,85 ,

316The Bodmin Division of the County of Corrwall Case (VO'M & Hp. 223) 53, 110Bodmin 5 L'M & H. 230 166Boham's(1610)8Co. Rep. 118 341The Borough of Walshall Case (IVO'M & Hp. 123) 53,110The borough of Great Yarmouth case (VO'M & Hp. 176) . . . . 53 ,110Bradlaughv. Goddett, (12) Q.B.D.271 166,182,

216, 278Brahma Datta v. Paripurna Nand and others Election Petition No. 1 of 1971 All. 52, 77

High Court decided on 9-11-1971.

(iii)

(iv)PAGES

Chandra Mohan v. State of Uttar Pradesh & others (1967) I S.C.R. 77 . . 166,177Chandrasekhar Singh v. Sarjoo Prasad Singh and another 22 E.L.R. 206 . - 52, 73Charles W. Baker v. Joe C. Carr (7 L. Ed. 2d. 663) 166, 172M. Cheni Reddy v. V. Ramachandf a Rao and another 40 E.L.R. 390 . • 324C. Chirauje-svulu Naidu v. E. S. Thyagarajan 25 E.L.R. 201 . 5 2

Chitralekha v. State of Mysore (1964) 6 S.C.R. 368 317Cooper v.Wandsworth Board of Works (1863) 14 C.B.(N.S.) 180. . • 348Comri'ssiony of Inoom-3 Tax Bombay v. Jamss Anderson (1964) 5 S.C.R. 590 . 375Ths Counties ofElign and Nairn Case (VO'M&Hp. l ) » 53,110R. K. Dalm'a v. SSiri Jastics S. R. Tendolkar and others (1959) S.C.R. 279 . 317David S. Barry v. United States of America Ex. Rel. Thomas W. Cunningham, 166, 172

(73 L. Ed. 867).M. R. Dska v. N. E. F. Rly. (1964) S.C.R. 683 317Dinesh Raj Dangi v. Daulat Ram 39 E.L.R. 463 52,85-

316Don John Doughlas Luyange v. The Queen (1967)1 A. C. 259 . . • 167,219,

370Dred Scott. Sandford (1856) 19 How. 393 349Durga Shankar Mehta v. Thakur Raghuraj Singh and others. (1955) 1 S.C.R. 267 <• 167 |Eis; Hal D.villmzi Co. Ltd. v. Finsbury Borough Council 1952 A.C. 109 J 329, 364Edinburgh and Alkith Ry. v. Wacuhope (1882)8 Cl . and F.710 at 724 . * 167,276s

EiwwdsM. Edwards v. United States, 1880 26 LE.314(C) . . . . 53,119,167

V- P- G:nlroniya v State ofMadhyaPradesh andanother A.I.R.1970S.C.J494 53, 123Glossop v. Glossop (1907) Vol. 2, Chancery Division . . . . . 53, 121,

In the matter of the Gucsstor, Abaryatwith and South Wales Railway Co. and of 53, 121the Joint St ock Companies Winding-up Acts maitlands Case English Reports43 Chancery 708.§

I. C. Golak Math v. State of Punjab and Another (1967) 2 °.C.R. 76? . , 67,248,266, 331,353, 379

A. K, Grpalanv. S:ate ofMadras L950 S.C.R. 88 . . . . . 166,196,366

Gwalior Rayon Silk Mfg.(Wvg.)Co.Ltd.,v. The Assistant Commissioner of 166, 20USales Tax and others (1974) 4 S.C.R. 98. *•;'

HifizMohd. Ibrahim v. Election Tribunal Lucknowand another 13 E.L.R. 262 . 167, 304HajiAbdulWahidv.B.V.K'3skarandanothsr21E.L.R.243. . . . 52,107,

292, 309Halsbury's Law of England, Simond's Edition Vol. V.P. 61 . . . . 119Hans Raj v. Hari Ram and others 40 E.L.R. 125 166,167,

192, 245,323

Harbhajan Singh v. Mohan Singh & Others (1974) 2 S.C.C. 364 . . . 167Inland Revenues Commissioners v. Hambrook (1956)1 AHEngland Law Reports 53, 121

807.JadavSingh and others. State of• Himachal Pradesh Administration and 365

anther (1950) 3 S.C.R. 755.S:i Jig'.dgiruKiri Bmva Rajsndraswami of Gavimutt v. Commissioner of 375

H n lu R ?ligious Caaritable Endowments, Hyderabad (1964) 8 S.C.R.252.Jag lev Sinsh v. Pratap Singh Daulata and others A.I.R. 1965 S.C. 183 . . 53, 90Jaisinjhini v. Union of India (1967) 2 S.C.R. 705 167,270ammi P asad Mukhvfiya and othersv. Lachhi Ramar>.d others(1955)l S.C.R. 166, 198

608.

(v)PAGES

Janapada Sabha Chhindwara etc. v. The Central Provinces Syndicate Ltd. and 167, 219,another (1970) 3 S.C.R. 745. ib°

Jay v. Tophamll2 How St. Tr. 821 339,340Jayantilal Amritlal Shodhan v. F. N. Rana and others (1964) 5 S.C.R. 294 . 166, 177 ,

John Clarke George Esquire and Sir Roland Jennings, Knight 1955 LawReports Statutes 4 Eliz. 2. i0*

Julian Bond v. James Stoppy Floyd (17 L.Ed.ed. 235) 166> ^

Kanta Kathuria v. Manak Chand Surana (1970) 2 S.C.R. 835 - • • 6, VT6,

23l', 239,'263, 275,367, 395

Kanwar Lai. Guptu v. Amar Nath Chawla A.I.R. 1975 S.C. 308 . • • 6*> I1'OO, O7,

' 91, 95,98, 166,

191, 193,318, 319,320, 37 7

His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala 166, 170,0973) Suppl. S.C.R. 1. 213*222'

227,' 252,'236, 268,269, 271,274,275,283, 314,327, 329,337, 344,345 , 366

Keith v. Clark (1878) 97 U.S. 554 . . . 350;S- Khader Sheriff v. Munnuswami A.I.R. 1955 S.C. 775/(1955) 2 S.C.R. 469 . 53, 108,

167, 308Dr. B. N. Kharev. State of Delhi (1952) S.C.R. 519 317Khyerbari Tea Co. Ltd. & Another v. The State of Assam (1964) 5 S.C.R. 975 365Kielley v. Carson 4 Moore P. C. 63 361Krishna Kanta v. Banmali Babu A.I.R. 1968 Orissa 200 53,112Krishna Chandra Gangopadhyaya etc. v. The Union of India and Others A.I.R. 365

1975 S.C. 1389.Lachford Premier Cinema Limited v. Ennion Chancary Division Volume 2,1931 53, 121,

122Lachhi Ram v. Jamana Prasad Mukhariya and ors 9 E.L.R. 149 . • 53,85,317The Lichfield Case (VO'M & Hp. 27) 53,110Louisville Gas Co. v. Alabama Power Co. 240 US 30 at 32 . . . . 167, 280Magraj Patodia v. R. K. Birla and others (1971) 2 S.C.R. 118/AIR 1971 S.C. 2,11,36,

1295. 53, 90,166,

193, 320,322

Mar bury v. Dadison 1803 Cranch 137 342Marshall Field & Co. v. John & M. Clark (143 U. S. 649) . . . . 1 6 6 , 216B. P. Maurya v. Prakash Vir Shastri 37 E.L.R. 137 52, 85,

317

M o h d . H i n i f Qaareshi and others v. State of Bihar A.I.R. 1858 S.C. 731 . . 5 2 , 8 4

Mohan Singh v. Bhanwar Lai & others A.I.R. 1964 S.C. 1366 . . . 53, 90

53m, 112m,167,

. 167,

. 166,

1 167.

306317350250166167217365394.254

(vi)

,, PAGES

Marburyv. Madison 1 Cr. 137,163 167,224'372

Morris v. Baron and Company 1918 A.C. 1 53 ,121,122

Moti Lai v. ManglaPrasad and others A.I.R. 1958 All. 794 . . • . 5 2 , 70,167, 313

Municipal CorporationoftheCityof Ahmedabad etc. v. NewShorockSpg. Wvg. 167, 219Co. Ltd. Etc. (1971)1 S.C.R. 288.

Munnuswami Gounder v. Khader Sheriff & others. 4 E.L.R. 283 .

T. K. Musaliar v. Venkitachalam Potti and Others (1955) 2 S.C.R. 1196 .National Prohibition Cases (1920) 253 U.S. 350National Security Co. v. U. S. 193 U.S. 197 at 400-1 (1904) .Norwich (54 L.T. 627)Smt. Om Prabha Jain v. Charan Das another A.I.R. 1975 S.C. 1417Oscar Leser v. J. Mercer Garnett (66L, Ed. 505)Pandia Nadar and others v. The State of Tamil Nadu (1974) 2 SC.C. 539Panama Refining Co. v. Ryan 293 U. S. 388N. P. Ponnuswami v. Returning Officer Namkal Constituency and others (1952)

S.C.R. 218.Prakash Vir Shastri and others v. Union of India and others A.I.R. 1974 Delhi 52, 62

1.Sri Prasanna Das Damodar Das Palwar v. Indu Lai Khanhaiya Lai Yagnik,

decided by the Gujarat High Court on 27-8-1971, Gujarat Gazette dated20-7-1972 52, 85,

168, 316

Prentis v. Atlantic Coast Line Co. 211 U . S . 210 167,255Shri Prithivi Cotton'Mills Ltd. and another v.Broach Borough Municipality 167, 219,

and others (1970)"l S.C.R. 388. 366Qudrat Ullah v. Minicipal Board Barielly A.I.R. 1974 S.C. 396 . . . 366Queen v. Burah S.I.A. 178 356, 367Radhakrishan v. Durga Prashad A.I.R. 1940 P.C. 167 375Rahim Khan v. Khurshid Ahmed and Ors C.A. 816 of 1973 decided on 8-8-1974 53, 90,

(1974) 2 S.C. C. 660. 167, 315Raj Krushna Bose v. Vinod Kanungo and others 9 E.L.R. 294 . . • 52 ,73B. Rajagopala Rao v. N. G. Ranga A.I.R. 1971 S.C. 266 . . . . 2 , 1 1 , 3 2 0Raj Kumar v. Union of India A.I.R. 1969 S.C. 180 53,120,

150, 167,300

RajNarainv. Smt. Indira Nehru Gandhi A.I.R. 1972 S.C. 1302 . . . 53,120,123, 167,.

3C0Ram Dayal v.Brijnaj Singh &«thers (1970) 1 S.C.R/530 . . . . 2,10,166

322Ram Murti v. Simba Sadar and others 2 E.L.R. 330 53,119,

•122Ram Phal v. Brahma Prakash and others 23 E.L.R. 92 167,304Rananjaya Singh v. Baijnath Singh & others (1955) 1 S.C.R. 671 . . . 2,9,

, 166, 319, 320,321,323

J. P. Rawat v. K. D.Paliwal 20 E.L.R. 443 167,304,309

P. C. P. Reddiar v. S. Perumal (1972) 2 S.C.R. 646 2,21,36,Rustom Cavasjee Cooper v. Union of India (1970) 3 S.C.R. 530 . . . 365

(vii)PAGES

Rustom Satin v Dr. Sampoornanad and others 2 E.L.R. 221 . . • • 167> 304Sahodrabai Rai v. RamSingn Aharwarand Ors. 37 E.L.R. 176 . • • "317

Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 379"Samant N . Balakrishna etc. v. George Fernandez and Ors. etc. (1969)3 S.C.R 323

603.Smt. Satwant Kaur v. State of Punjab and Ors. decided by the Punjab & Har- 124

yana High Court on 29-4-75. (C.W. 2083/1975).Satya Dev Bushahri v. PadamDevand Ors. 10ELR103 . , /L2 '™3 /

167, 291Shah Jayanthilal Ambalal v. Kasturilal Nagindas Doshi, 36 ELR 188 . • 52 f|>

166, loo,192, 316,

323M S M Sharma v. Dr. Shree Krishna Sinha and others AIR 1960 SC 1186 . 325Sheopat Singh v. Ram Pratap (1965) SCR 175 . . . . . . 167,313Shyam Lai Mansa Din and Ors 37 ELR 67 52, 85,

316ShitalPrasad Misra v. Nitiraj Singh Chaudhary : Election Petition No. 2 of 1971 52, 85,

decided by M.P. High Court on 21-7-1972. 168, 316Sir A Rahim's Muhammadan Jurispurudence 1958 21 336Special Reference No. 1 of 1964(1965)1 SCR 413 166,183,

• ' 361

State of Bihar v. Rai Bhadur Hurdut Roy Noti Lall Mills Ltd. / I R 1960 SC 53, 89378

State of Bihar Kameshwar Singh AIR 1952 SC 252 325State of Orissa v. Bhupendra Kumar Bose (1962) 2 Supp. SCR 380 .

State of Tamil Nadu and Anr. v. M Rayappa Gounder AIR 1971 SC 231.

State of U P v . Raja Anand Brahma Shah (1971)1 SCC 362 . . . .The State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 .Stockdalev. Hansard (1) 1163M P V Sundararamier and Co. v. The State of Andhra Pradesh and another 1958

SCR 1422.Sudarsana Rao v. Christian Pillai and Ors AIR 1924 Madras 306 .Taylor v. Deckham44L.Ed. 547Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Ors (1964)

1SCR561.Truman H Newberry v. United States of America (65L.Ed. 913)Udai Ram Sharma and Ors. etc. v. Union of India and Ors. (1968)3 SCR 41 .

Union of India and Anr. etc. v. Messrs. Parameswaran Match Works etc.Civil Appeals No. 262-273, 587, 591 and 1351-1402 of 1971 and 1883-1921 of 280

1972 decided on 4-11-74 24 U S 30.United Engineering Workers Union v. Devnayagam (1968) AC 356 . . . 167,255United States v. Lee 106 U S 196 220 167,224U S v . Brown 381 U S 437 260In Ex. Parte Walton In re. Levy (1881)17Ch.D. 746 375Ware v.Hylton (1876)3 Dall 199 34?White v. Heat (1871)13 Wall 646 350*(In WilkesCase (19 St. Tr. ,981) . • 166,184

166,235,

167,

339,166,

53,

166,166,365,

218,264,365

219,366366392340197,365122166355

172177,366

IN THE SUPREME COUKT OF INDIAKANWAR LAL GUPTA

V.AMAR NATH CHAWLA AND OTHERS

October 3, 1974(P. N. BHAGWATI AND R. S. SARKARIA JJ)

Representation of the People Act (43 of 1951) Sec. 123(6)—Expensesincurred in excess of prescribed limit—by political party supporting acandidate—circumstances in which corrupt practice.

The first respondent's election to the Lok Sabha in 1971 was challenged by thepetitioner on various grounds though the main ground taken up in the appeal wasthat the first respondent incurred or authorised expenditure in excess of the prescribedlimit of Rs. 10,000 in contravention of S. 77 and committed a corrupt practice unders. 123(6). The High Court dismissed the election petition.

Allowing the appeal, the Supreme Court,

HELD: The total expenditure proved to have been incurred or authorised bythe first respondent was in excess of the prescribed limit of Rs. 10,000 and thereforehis election must be set aside.

(1) The first respondent owned the responsibility for expenses in respect of the23 public meetings admitted by him. He also admitted in his evidence that he "borethe expenses of all the election meetings in my constituency". There was oralevidence to show that nine further meetings were held on his behalf at various places.Therefore, there was no scope for the argument that the expenses on any of theseadditional 9 public meetings were met by any organisation or individual other thanthe first respondent. Eyen if the expensesof some of these nine public meetingswere incurred by the District Pradesh Congress Committee or any other branch ofthe Congress organisation which sponsored his candidature, or by any other friendor supporter, such expenses must be held to have been authorised by the firstrespondent because he knowingly took advantage of such public meetings byparticipating in them and consented to, or at any rate, acquiesced in such expenses.

The objects of enacting a ceiling on the expenditure which may legitimately beincurred in connection with an election are:

(a) It should be open to any individual or to any political party, however small,to be able to contest an election on a footing of equality with any otherindividual or political party, however rich and well financed it may be,and no individual or political party should be able to secure an advantageover others by reason of its superior financial strength. The democraticprocess can function efficiently and effectively, for the benefit of the commongood and reach out the benefits of self government to the common manonly if it brings about a participatory democracy in which every man, how-ever lowly or humble he may be, should be able to participate on a footingof equality with others.

(b) The other objective of limiting expenditure is to eliminate, as far as possible,the influence of big money in electoral process. If there were no limits onexpenditure political parties would go all out for collecting contributionsand obviously the largest contributions would be from the rich and theaffluent who constitute but a fraction of the electorate. The result wouldbe that though ostensibly the political parties which receive such contribu-tions may profess an ideology acceptable to the common man, they wouldin effect and substance be the representatives of a certain economic class,and their policies and decisions would be shaped by the interests of thateconomic class. Pre-election donations would be likely to operate on post-election promises resulting ultimately in the casualty of the interest of thecommon man. The small man's chance is the essence of Indian democracyand that would be stultified if large contributions from rich and affluentindividuals or groups are not divorced from the electoral process.

1

2 KAKWARLAL GUPTA V. AMAR NATH CHAWLA [VoL. LVH

Under s. 123(6) not only is the incurring of expenditure in excess of theprescribed limit a corrupt practice but also the authorising of such expendi-ture. Authorising may be implied or express, and whether a particularexpenditure was impliedly authorised by the candidate would depend uponthe facts and circumstances of each case as appearing from the evidenceadduced before the court.

The reasonable interpretation of the provision, which would carry out its objectand intendment and suppress the mischief and advance the remedy bypurifying the election process and ridding it of the pernicious and banefulinfluence of big money, is that the legislature could never have intendedthat what the individual candidate cannot do the political parties sponsoringhim, or his friends and supporters, should be free to do. When a politicalparty sponsoring a candidate incurs expenditure specifically in connectionwith his election, as distinguished from expenditure on general party propa-ganda, and the candidate knowingly takes advantage of it or participates inthe programme or activity or consents to it or acquiesces in it, it v/ould bereasonable to infer, save in special circumstances, that he impliedly autho-rised the political party to incur such expenditure. The same propositionmust hold good in case of expenditure incurred by friends and supportersdirectly in connection with the election of the candidate. If a candidatewere to be subject to the limitation of the ceiling but the political partysponsoring him or his friends and supporters were to be free to spend asmuch as they like in connection with his election, the object of imposing aceiling would be completely frustrated and the beneflcient provision enactedin the interest of purity and genuineness of the democratic process wouldbe wholly emasculated.

Ranajaya Singh v. Baijnath Singh & Ors. (1955) 1 S.C.R. 671.

Ram Dayal v. Brijraj Singh & Ors. (1970) 1 S.C.R. 530.

Magraj Patodia v. R. K. Birla & Ors. (1971) 2 S.C.R. 118 and

B. Rajagopala Rao v. N. G. Ranga A.I.R. 1971 S.C. 266.

referred to

(2) If the Court comes to the conclusion that an item of expenditure has beensuppressed in the return of election expenses, the mere fact that there is no sufficientevidence about the amount that must have been spent is no ground for ignoring thematter. It is the duty of the Court to assess all expenses as best as it can thoughthe court should not enter into the region of speculation or merely try to guess theamount that must have been spent. Generally it would be possible to arrive at anamount of expenditure on a conservative basis, and where it is possible to arrive atsuch an estimate, such estimated amount should be held as not shown by the candidatein his election account.

Magraj Patodia v. R. K. Birla & Ors. (1971) 2 SCR 118.

P. C. P. Reddiar v. 5. Perumal (1972) 2 S.C.R. 646.

referred to

(3) It is not uncommon to find that during elections, posters and handbills areprinted without complying with the requirement of section 127A, and sometimescontaining scandalous material about rival candidates. There should therefore besome independent semi-judicial instrumentality set up by law, which would imme-diately investigate, even while the election fever is on and propaganda and canvassingare in progress and the evidence is raw and fresh, how the offending handbills andposters have come into existence.

Rahim Khan v. Khurshid Ahmed & Ors. C.A. 816 of 1973, decided on August 8,1974.

followed.

CIVIL APPEAL NO. 1549 OF 1972

S. N. Marwaha, A. K. Marwaha and K. C. Dua for the appellant.

M. N. Phadke, V. P. Nanda, N. S. Dass Bahl and D. N. Mishra for respondentNo. 1.

•E.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 3

JUDGMENT

BHAGWATI, J.—The controversy in this appeal relates to the validityof election to the Lok Sabha from the Sadar Parliamentary Constituencyin the Union Territory of Delhi, Eleven candidates originally offeredthemselves for election from this constituency but out of them, six withdrewtheir candidature with the result that only five remained in the field ascontesting candidates. They were the petitioner and respondents Nos. 1 to4. The petitioner was put up as a candidate by the Jan Sangh. Whilethe candidature of the first respondent was sponsored by the Congress,which at that time, on account of the split in the organisation, was knownas the ruling congress or the new Congress Respondents Nos. 2 to 4 wereindependent candidates. Though there were nominally five candidates thereal contest was between the petitioner and the first respondent. The poll-ing took place on 5th March, 1971 and the result of the poll was declaredon 11th March, 1971. The petitioner secured 55305 votes, while the firstrespondent polled 98108 votes. The first respondent thus won by a largemajority and was declared elected. The petitioner thereupon filed anetection petition challenging the validity of the election of the first respondenton various grounds. The election petition was contested by the firstrespondent and, as the voluminous mass of record shows, it was foughtout to a bitter and with great industry and thoroughness on both sides. Mr.Justice Andley of She Delhi High Court, who heard the election petition,found in an elaborate judgment that none of the grounds on which theelection was sought to be invalidated was established and he accordinglydismissed the election petition with costs. The present appeal preferred bythe petitioner impugns this judgment of Mr. Justice Andley.

The election petition was based on numerous grounds which weresummerised in paragraph 9 and .subsequently elaborated in paragraphs 12,14, 18 fc> 21 and 24 to 26. The* ground set out in paragtaph 12 was thatthe electoral rolls, on the basis of which the election had been held, wereimperfect and defective, and that vitiated the election. Paragraph 14 allegedthe invalidity of the amendment in rule 56 of the conduct! of Election Rules1961 and paragraphs 18 and 19 challenged the validity of the election onthe ground that about a lac or more ballot papers, which had beenchemically treated, were fraudulently introduced and that had materiallyaffected the result of the election. The charge in paragraphs 20 and 21was that the first respondent was guilty of corrupt practice, in that the firstrespondent, his election agent and other persons with his consent, includingthe first respondent', had printed and published a hand bill and a postercontaining statements in relation to the personal character or conduct ofthe petitioner which were false and which the first respondent did not believeto be true, and which were reasonably calculated to prejudice the prospectsof the petitioner's election. Paragraph 24 also charged a similar corruptpractice on the allegation that these statements were repeated by the firstand the fifth respondents in public meetings as also during the course ofcanvassing. And lastly, it was alleged in paragraphs 25 and 26 that thefirst respondent had incurred or authorised expenditure in excess of theprescribed limit of Rs. 10,000 in contravention of section 77 of theRepresentation of the People Act, 1951. These were broadly the groundson which the election of the first respondent was sought to be declaredvoid by the petitioner.

Though the first, second and fifth respondents filed their respectivewritten statements, the contest was only on behalf of the first and fifthrespondents. The second respondent supported the petitioner : his support

4 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. L V i r

was however not of much value since he did not take any active part inthe petition. Respondents 3 and 4 were obviously not interested in thepetition and they did not even care to appear or file any written statement.The firsj and fifth respondents raised in their written statements certainpreliminary objection and also denied the various allegations made in thepetition and contested the grounds on which the petitioner claimed to setaside the election of the first respondent. We shall deal with the contestsof these written statements a little later when we examine the specificcharges levelled against the first respondent Suffice iit to state for thepresent that on the basis of the preliminary objections raised in the writtenstatements, the learned Trial Judge framed four preliminary issues andthey were decided by an order dated 6th August, 1971. So far as the firstpreliminary issue is concerned, the learned Trial Judge held that paragraphs9, 12, 18 to 21 and 24 to 26 did not suffer from lack of concise statementof material facts, but they did not give full particulars of the allegationsand he accordingly directed the petitioner to furnish further particulars withrespect to paragraphs 18 to 21, 24 and 25 as specified in the schedule tothe order. The second and the fourth preliminary issues do not survivefor consideration : They were decided against the petitioner and thepetitioner does not challenge the decision in appeal. The third preliminaryissue was decided in favour of the petitioner but it is now meaningless todiscuss it because the petitioner is not pressing the ground set oat inparagraphs 18 and 19 is support of the appeal.

Pursuant to the aforesaid order dated 6'ch August, 1971, the petitionerfurnished particulars of the allegations contained in paragraphs- 18 to 21,24 and 25 by an affidavit dated 19th August, 1971. A reply to theseparticulars was given by the first respondent on 26th August, 1971, we shallhave occasion to refer to these particulars and the reply made to themwhen we examine the arguments advanced on behalf of the parties.

The learned Trial Judge then framed issues on the merits by an ords-dated 3rd September, 197 f. Issues 1 to 7 of these issues relate to theground set out in paragraphs 18 and 19. It is noifi necessary to refer tothem since they were decided against the petitioner by the learned TrialJudge and the correctness of this decision is not assailed on behalf of thepetitioner in the present appeal. Issue 8 raised the question whether thefirst respondent his election agent and other persons with the consent ofthe first respondent or his election agent committed ithe corrupt practicescharged in paragraphs 20 and 21 and issue 9 raised a similar question inregard to the corrupt practices set out in paragraph 24. The questionwhether the first respondent incurred or authorised expenditure in excessof the prescribed limit of Rs. 10,000 in contravention of Section 77 as allegedin paragraph 25, was put in issue 10. Issues 11, 12 and 13 raised certainsubsidary questions but it appears from the judgment of the learned TrialJudge that they were not pressed by the learned Advocate appearing onbehalf of the petitioner before the Trial Court. We need not, therefore,spend any time on these issues. The last issue was issue 14 which wasdirected against the fifth respondent who was alleged to have committedcorrupt practices.

There was enormous oral as well as documentary evidence led onbehalf of both sides. This evidence discloses certain curious and unusualfeatures to which we shall advert in course of time, but there can be nodoubt that it evidences very careful and thorough preparation of the caseon either side. Not an inch of ground appears to have been conceded byone side to the other and every move in this long and bitter contest, from

E.L.R.] KANWARLAL GUPTA V, AMAR NATH CHAWLA 5

one side or the other, seems to have been well thought out and relentlesslypursued. The learned Trial Judge, on a consideration of the evidencepresented before him, cams to the conclusion {hat issues 8, 9 and 10 werenot established by the petitioner and there was also no satisfactory proofia regard to issue 14 and accordingly, by a judgment dated 19th May, 1972ke rejected the charges of corrupt practices against the first and fifthrespondents and dismissed the election petition with costs. The petitionerbeing aggrieved by the judgment of the learned Trial Judge preferred thepresent appeal under section 116A of the Representation of the People Act,

- 1951. " .

The petitioner assailed the correctness of the judgment of the learnedTrial Judge only on issues 8, 9, 10 and 14. The judgment, in so far asit related to issues 1 to 7 and 11 to 13 was accepted by the Petitioner andh is, therefore, not necessary to refer to the facts in so far as they bearon these issues. We shall confine ourselves, only to such of the facts asare relevant to issues 8, 9, 10 and 14 and instead of setting them out in anarrative form before commencing discussion of the arguments, what wepropose to do is to refer to the relevant facts while discussing each particularissue. We shall proceed in the order in which these issues were arguedbefore us.

We first take up Issue 10. The charge against the first respondentunder this issue was that he incurred or authorised expenditure in excessof the prescribed limit of Rs. 10,000 in. contravention of section 77 andthereby committed the corrupt practice defined in section 123(6) of the Act.Section 123 sets out various corrupt practices which have the effect ofinvalidating an election and one of them is the incurring or authorisingof expenditure in contravention of Section 77 : Vide sub-section (6). Sab-section (1) of section 77 provides that every candidate at an election shall,either by himself or by his election agent, keep a separate and correct-account of all expenditure in connection* with the election incuxied orauthorised by him or by his election agent between the di'ate of publicationof the notification calling the election and it'he date of declaration of thsresult thereof, "both dates inclusive", while sub-section (3) says that "thetotal of the said expenditure shall not exceed such amount as may beprescribed". It was common ground between the parties that the expenditureprescribed for a parliamentary constituency in the Union Territory of Delhiwas Rs. 10,000. The first respondent and his election agent were, there/ore,prohibited by section 77 from incurring or authorising expenditure iaconnection with his election exceeding Rs. 10,000 and if the first respondentor his election agent incurred or authorised such expenditure in excess ofRs. 10,000, it would be a corrupt practice voiding his election undersection 123(6). The question which, therefore, arises for consideration iswhether the first respondent or his election agent incurred or authorisedexpenditure in connection with his election exceeding Rs. 10,000.

Now, before, we proceed to discuss the evidence bearing on this question,we must clear the ground by pointing out that not only is the incurring ofexcessive expenditure a corrupt practice, but also the authorising of suchexpenditure, and authorising may be implied as well as express. Wherethe authorising is express, there is no difficulty in bringing home the chargeof corrupt-practice against she candidate. But a somewhat difficult questionon facts may arise where the charge is sought to be proved against thecandidate on the basis that he impliedly authorised excessive expenditure.Whether a particular expenditure was impliedly authorised by the candidatemust depend on the facts and circumstances of each case as appearing froro


6 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVI1

the evidence adduced before the Court. This question would arise in achallenging form where expenditure in connection with the election isincurred, not by the candidate, but by the political party which has sponsoredhim or his friends and supporters. Can the limit, on the expenditure bsevaded by the candidate by not spending any moneys of his own butleaving it to the political party or his friends and supporters to spend anamount far in. excess of the limit? The object of the provision limitingthe expenditure is two-fold. In the first place, it should be open to anyindividual or any political party, howsoever small, to be able to contest anelection on a footing of equality with any other individual or politicalparty, howsoever rich and well financed it may be, and no individual orpolitical party should be able to secure an advantage over others by reasosof its superior financial strength. It can hardly be disputed that the wayelections are held in our country, money is bound to play an importantpart in the successful prosecution of an election campaign. Only supplies wassets for advertising and other forms of political solicitation that increasesthe candidate's exposure to the public. Not only can money buy advertis-ing and convassing facilities such as hoardings, posters, handbills, brochuresetc. all the other para-phernalia of an election campaign, but ]i canalso provide the means for quick and speedy communications and move-meats and sophisticated campaign techniques and is also "a substitute forenergy" in lhat paid workers can be employed where volunteers are foundto be insufficient. The availability of large funds does ordinarily attendto increase the number of votes a candidate will receive. If therefore, onepolitical party or individual has larger resources available to it than anotherindividual or political party, the former would certainly, under the presentsystem of conducting elections, have an advantage over the latter in theelectoral process. The former would have a significantly greater opportunityfor the propagation of its programme while the latter may not be able tomake even an effective presentation of its views. The availability ol'disproportionately larger resources is also likely to lend itself to misuse orabuse for securing to the political party or individual possessed of suchresources, undue advantage over other political parties or individuals. DugJaspoints out in his book called Ethics in Government at page 72. "If one-party over attains overwhelming superiority in money, newspaper support,and (government) patronage, it will be almost impossible, barring aneconomic collapse, for it over to be defeated." This produces anti-democratic effects in that a political party or individual backed by theaffluent and wealthy would be able to secure a greater representation thana political party or individual backed by the effluent and affluence orwealth. This would result in serious discrimination between one politicalparty or individual and another on the basis of money power and that inits turn would mean that "some voters are denied an 'equal' voice andsome candidates are denied on 'equal change'." It is elementary that eachand every citizen has an inalienable right to full and effective participationin the political process of the legislatures and this required that each citizenshould have equally effective voice in the election of the members of thelegislatures. That is the basic requirement of the Constitution. This equaleffective voice—equal opportunity of participation in the electoral process—would be denied if affluence and wealth are to tilt the scales in favour ofthe one political party or individual as against another. The democraticprocess can function efficiently and effectively for the benefit of the commongood and reach out the benefits of self-government to the common manonly if it brings about a participatory democracy in which every man,howsoever lowly or humble he may be, should be able to participate ona footing of equality with others. Individuals with grievances, men andwomen with ideas and vision, are the sources of any society's power to

E.X.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 7

improve itself. Government by consent means that such individuals musteventually be able to find groups that will work with them and must be

.able to make their voices heard in these groups and no group should beinsulated from competition and criticism. It is only by the "maintenanceof such conditions that democracy can thrive and prosper and this can beensured only by limiting the expenditure which may be incurred inconnection with elections, so that, as far as possible, no one single politicalparty or individual can have unfair advantage over the other by reasonof its larger resources and the resources available for being utilised in theelectoral process are within reasonable bounds and not unduly disparateand the electoral contest becomes evenly matched. Then alone the smallmen will come into his own and will be able to secure proper representationin our legislative bodies.

The other objective of limiting expenditure is to eliminate, as far aspossible, the influence of big money in the electoral process. If there wereno limit on expenditure, political parties would go all out for collectingcontributions and obviously the largest contributions would be from therich and affluent who constitute but a fraction of the electorate. Thepernicious influence of big money would then play a decisive role incontrolling the democratic process in the country. This would inevitablylead to the worst from the political corruption that in its wake is boundto produce other vices at all levels. This danger has been pointed out intelling words in the following passage from the notes in Harvard LawReview. Vol. 66, p. 1260 :

"A less debatable objective of regulating campaign funds is theelimination of dangerous financial pressures on elected officials.Even if contributions are not motivated by an expected return inpolitical favours, the legislator cannot overlook the effects of ni.sdecisions on the sources of campaign funds."

It is difficult to generalise about the degree of influence which ihelarge contributors may wield in shaping the policies and decisions of thepolitical party which they finance. It is widely acknowledged, however,that, at the very least they would have easy access to the leaders andrepresentatives of the political party. But it would be native to suggestthat the influence ends with more access. It may safely be assumed thathardly any politicians would consciously sell their votes, the result may benearly the same, if one accepts Herbert Alexender's analysis of the subtlefactors that influence a political party's action :

"Many politicians—who do what they honestly think is right, neverrealise that they are mere spokesmen for their financial supporters.A legislator can avoid a conflict of interest by investing in govern-ment bonds, but he cannot change the conditioning that leads himto believe that what is good for his former company or presentbackers is good for the country."

It is likely that some elected representatives would tend to share the-views of the wealthy supporters of their political party, either because ofshared background and associations, increased access of subtle influencewhich condition their thinking. In such even the result would be thatthrough ostensibly the political parties which receive such contributions mayprofess an ideology acceptable to the common man, they would in effectand substance be representative of a certain economic class and their policies

8 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVI

and decisions would be shaped by the interests of that economic class. Ttwas over a hundred years ago that John Stuart Mill observed that personsof a particular class who have exclusive governmental power, even if theytry to act objectively-, will tend to overlook the interests of other classes,or view these interests differently. And to this natural tendency may beadded the fact that office bearers and elected representatives may quitepossibly be inclined, though unconsciously and imperceptibly, to espousepolicies and decisions that will attract campaign contributions from affluentindividuals an-d groups. It was said of the electoral process in the UnitedStates of America : "Members, of the Rockfeller and Du Pen familiesinvest in the election of a Republican President because they sense that ifthat patty takes over the White House, their interests will gain moresympathetic attention—". "The central objective of contributings in accessto the power of the elected officials". "For a gift of a few hundred dollarsan individual may gain, in return, the interession of a Congressman thatwill get him a government contract or a traffic provision that: will ultimateivnot him or his business tons of thousands of dollars." It is obvious thatpre-election donations would be likely to operate as post-election promisesresulting ultimately in the casualty of the interest of the common man, notso much ostensibly in the legislative process as in the implementation oflaws and administrative or policy decisions. The small men's chance is theessence of Indian democracy and that would be stultified if large contribu-tion from rich and affluent individuals or groups are not divorced from theelectoral process. It is for this reason that our Legislators in their wisdom,enacted a ceiling on the expenditure which may legitimately be incurred inconnection with an election. This background must inform the court in theinterpretation of this vital and significant provision in the election law ofour country.

Now, if a candidate were to be subject to the limitation of the ceiling,but the political party sponsoring him or his friends and supporters wereto be free to spend as much as they like in connectionwith his election, the object of imposing the ceiling would be completelyfrustrated and the beneficent provision enacted in the interest of purity andgenuineness of the democratic process would be wholly emasculated. Themischief sought to be remedied and the evil sought to be suppressed wouldenter the political arena with redoubled force and vitiate the political lifeof the country. The great democratic ideal of social, economic and politicaljustice and equality of status and opportunity enshrined in the Preambleof our Constitution would remain merely a distant dream eluding our grasp.The legislators could never have intended that what the individual candidatecannot do, the political party sponsoring him or his friends and supportersshould be free to do. That is why the legislators wisely interdicted notonly the incurring but also the authorising of excessive expenditure by ncandidate. When the political party sponsoring a candidate incursexpenditure in connection with his election, as distinguished fromexpenditure on general party propoganda, and the candidate knowinglytakes advantage of it or participates in the programme of activity or failsto disavow the expenditure or consents to it or acquiesces in it. It wouldbe reasonable to infer, save in special circumstances, that he impliedlyauthorised the political patty to incur such expenditure and he cannot escape,the rigour of the ceiling by saying that he has not incurred the expenditure,but his political party has done so. A party candidate does not stand apartfrom his political party and if the political party does not want thecandidate to incur the disqualification, it must exercise control over theexpenditure which may be incurred by it directly to promote the poll

E.L-R-] KANWARLAL GUPTA V. AMAR NATH CHAWLA 9

prospects of the candidate. The same proposition must also hold good incase of expenditure incurred by friends and supporters directly in connectionwith the election of the candidate. This is the only reasonable interpretationof the provision which would carry out its object and intendment andsuppress the mischief and advance the remedy by purifying our electionprocess and ridding it of the pernicious and baneful influence of big money.This is in fact what the law in England has achieved. There, every person,on pain of criminal penalty, is required to obtain authority from candidatebefore incurring any political expenditure on his behalf. The candidate isgiven complete discretion in authorising expenditure upto his limit. If ex-penditure made with the knowledge and approval of the candidate exceedsthe limit or if the candidate makes a false report of the expenditure afterthe election, he is subject not only to criminal penalties, but also to havinghis election voided. It may be contened that this would considerably inhibitthe electoral campaign of political parties. But we do not think so. Inthe first place, a political party is free to incur any expenditure it likes onits general party propaganda though of course, in this area also some limi-tative ceiling is eminently desirable coupled with filling of return of expensesand an independent machinery to investigate and take action. It is onlywhere expenditure is incurred which can be jndentified with the electionof a given candidate that it would be liable to be added to the expenditureof that candidate as being impliedly authorised by him. Secondly, if thereis continuous community involvement in political administration punctuatedby activated phases of well-discussed choice of candidates by popularparticipation in the process of nomination, much of unnecessary expenditurewhich is incurred today could be avoided. Considerable distances may nothave to be travelled by candidates and supporters nor hidden skeletons inpolitical cupboard tactically uncovered, propagandist marijurm skillfullyadministered, temptations of office strategically held out nor violent demons-trations disrup'.ively attempted. The dawn-to-dawn multiple speakers andmonster rallies, the flood of posters and leaflets and the organising oftransport and other arrangements for large numbers would become otiose.Large campaign funds would not be able to influence the decision of theelectors if the selection and election of candidates become people's decisionbv discussion and not a Hobson's choice offered by political parties. Limitingelection expenses must be part of the political process.

This view, which we are taking, does not run counter to any earlierdecisions of this Court. The first decision to which we must refer in thisconnection in Rattanjava Singh v. Baijnath Singh & Ors. (1). There thecorrupt practice charged against the elected candidate was that certainpersons who were in employment of his father worked for him in connectionwith the election and their number exceeded the maximum number of personswho could be emploved in connection with the election as specified inSchedule VI read with Section 77. This charge was negatived by a Benchof fivs judges of this Court. The Bench held that in order to attract theinhibition if the relevant sections, it was necessary that the employment ofpersons other than or in addition to those specified in Schedule VI shouldbe by a candidate or his agent and since in that case, the persons whoworked in connection with the election were neither employed nor paid bythe elected candidate or his agent, the prohibitory requirement of section 77

read with section 123(7) was riot breached. It will be seen that this decisionwas concerned primarily with the question whether servants of tne father ofthe elected candidate, who worked for the elected candidate in connectionwith the election, were liable to be taken into account in determiningwhether the maximum number of persons who may be employed for

10 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVIf

payment in connection with the election were exceeded. It is no doubt truethat this Court observed that no expenditure was incurred by the electedcandidate over and above what was shown in the return of expenses andhe could not, therefore, be said to have concealed such expenditure, butthat was obviously because these persons who worked in connection withthe election were not paid by him. This Court had no occasion to considerwhether the elected candidate could be said to have authorised anyexpenditure by knowingly taking advantage of the services of these persons,because no such argument was advanced before this Court. In fact such anargument could not plausibly be advanced because the salaries paid by thefather to these persons were not for the purpose of working in connectionwith the election. The salaries were paid because they were servants in the-regular employment of the father and it was merely at the request oi thefather that they "assisted the son in connection with the election whichstrictly speaking !hey were not obliged to c!o." This decision does not.,,therefore, run contrary to what we have said.

We may then refer to the decision, of this Court in Ram Duyal v.Brijraj Singh & Ors. (2). The question which arose for consideration thatcase was whether certain expenditure incurred by the Maharaja of Gwaliorand the Rajmata in connection with the election of Brijraj Singh was liableto be included in his election expenses. Shah, j . , (as he then was) speakingon behalf of a Division Bench of two judges, pointed put that in the absenceof any connection between the canvassing activities carried on by theMaharaja and the Rajmata with the candidature of Brijraj Singh, Jj- isimpossible to hold that any expenditure was incurred for Brijraj Singhwhich was liable to be included in his election expenses. The learned Judgethen proceeded to and :

"We agree with the High Court that under s. 77(1) only the expenditureincurred or authorised by the candidate himself or by his electionagent is required to be included in the account or return of electionexpenses and thus expenses incurred by any other agent or personwithout any thing more need not be included in the account ofreturn, as such incurring of expenditure would be purely voluntary"(Emphasis supplied).

These observations would show that mere incurring of expenditure byany other person in connection with the election of a candidate, withoutsome'hing more, would not make it an expenditure authorised by thecandidate. But if there is something more which can reasonably lend itselfto the inference of implied authorisation, particularly having regard to theobject and intendment of the provision limiting expenditure, the courtwould readily draw such an inference because the paramount object of thisprovision is to bring about, as far as possible, equality in availability ofresources and eliminate the corrupting influence of big money. It is signifi-cant to note that in this case the Court proceeded to examine whether theevidence was sufficient in establish that Brijrai Singh travelled with theMaharaja in his helicopter and visited several villages for his election cam-paign and held that the evidence in this connection was not reliable. Thisinquiry would have been wholly unnecessary unless the Court was of theview that if Brijraj Singh could be shown to have travelled with the Maharajain his helicopter and visited several villages in connection with his electioncampaign, that would be sufficient to invest the expenditure, incurred bythe Maharaja with the character of expenditure impliedly authorised byBrijraj Singh. This decision, therefore, far from contradicting the viewtaken by us, actually supports it.

E.L.R] KANWARLAL GUPTA V. AMAR NATH CHAWLA 11

We rind the same view taken by this Court in the subsequent decisionIn Magraj Patodia, v. R. K. Birla & Ors. (3). There also Hegde, J., speak-ing on behalf of a Division Bench of two judges, observed, after referringto the decisions in Rananjaya Singh v. Baijnath Singh & Ors. (1) and RamDayal v. Brijraj Singh & Ors. (2) :

"This Court as well as the High Courts have taken the view that theexpenses incurred by a political party to advance the prospects ofthe candidates put up by it, without more do not fall within s. 77"(Emphasis supplied).

The same view was reiterated again by a Division Bench of two judgesof this Court in B. Rajagopala Rao v. M. G. Ranga (4). The quesuon,therefore, in cases of this kind always is whether there is something morewhich may legitimately give rise to an inference of implied authorisation bya candidate. What could be that something more is indicated by us in theproposition formulated above, though we must confess that by its verynature it is no; possible to lav down the exhaustive enumeration of the.circumstances in which that something more may be inferred.

With these observations in regard to the scope and ambit of *h©Provision limiting expenditure, we may now proceed to examine the facisand see whether the first respondent incurred or authorised expenditureexceeding Rs. 10,000 in connection with his election.

The first item of expenditure which we must consider in this connectionrelates to expenses incurred in holding public meetings in connection withthe election of the first respondent. The first respondent in the return ofexpenses filed by him with ihe District Election Officer showed threeamounts as having been spent by him in connection with his public meet-ings. One was an amount of Rs. 188, paid to Tandon Tent and FurnitureHouse for furnishings supplied for twelve public meetings held between20th February, 1971 and 2nd March, 1971. This expenditure was supportedby the bill of Tandon Tent & Furniture House, R-25 which showed thatfor each of the twelve public meetings. Tandon Tent & Furniture Househad supplied twenty durris, six takhats and two cliaddars at an aggregatecharge of Rs. 15 per meeting. The other was an amount of Rs. 180 whichaccording to the first respondent, was paid to Saini Electric Works formicrophone, loudspeakers and lighting arrangements made at the sametwelve public meetings. The payment of this amount was sought to bzsupported by the receipt of Saini Electric Works. R-27 which showed aconsolidated charge of Rs. 130 "on account of loudspeaker and lightingarrangements for the period from 20th February, 1971 to 2nd March, 1971".The third was an amount of Rs. 440 paid to Aggarwal Tent House forfurnishings and electric equipment supplied at eleven public meetings andtils bill of Aggarwal Tent House R-26 for this amount showed that AggarwalTent House had supplied for each public meeting one takhat, four durries,two chandanis, one microphone and four floodlights for a total amount ofRs. 440 inclusive of Rs. 100 for cartage and Rs. 40 for labour charges.The first respondent thus admitted a total number of twenty three publicmeetings and according to him, the total expenditure at each of these publicmeetings was about Rs. 30 for furnishings as well as electric equipment theaggregate expenditure being only Rs. 800. The petitioner challenged thisfigure of expenditure given by thi first respondent and contended that inaddition to twenty Ihree public meltings admitted by the first respondentmany more Dublic meetings were held in connection with the election of thefirst respondent and much larger expenditure was incurred in each of these

12 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVIJ

public meetings than what was shown by the first respondent in the bills ofTandon Tent & Furniture House and Aggarwal Tent House and the receipt.of Saini Electric Works. The argumenT of the petitioner was that in factthe first respondent had held more than fifty public meetings and at eacliof these public meetings he had incurred expenditure of not less thanRs. 200 and the expenditure incurred in the>e public meetings itself exceed-ed the prescribed limit of Rs. 10,000. The petitioner also urged that a hugemeeting was organised by the first respondent in connection with the electionof the first respondent at Idgah Road which was addressed by the PrimsMinister and this meeting alone cost about Rs. 50,000 and the ceiling ofRs. 10,000 was clearly exceeded. These contentions require a close look atthe evidence led on behalf of the parties.

We will first turn to consider [he number of meetings organised inconnection with the location of the first respondent. The first respondent,no doubt, admitted twenty three public meetings, as indeed he was boundto do in view of the return of expenses filed by him, but he did not staleat any time, until he came in the witness box after the closure of thsevidence of the petitioner, as to which were these twenty three publicmeetings and when and where they were held. The petitioner set out inthe particulars regarding paragraphs 20(2) and 24 of ths petition, furnishedby him pursuant to the order of the learned Trial Judge dated 6th A?-""!St>1971, the dates and places of the public meetings where the allegationscontained in the poster annexure 'A' were orally repeated by the first ar.dfifth respondents and these particulars included reference to several publicmeetings ultimately admitted by the first respondent, and yet the lr»n;trespondent did not in his reply to the particulars deny that any of thesepublic meetings were held by the first respondent, but merely contendedhimself by stating vaguely and evasively that "the correctness of the state-ments made against paragraph 20(2) (ii)" was denied. It is apparent thatthough more than twenty three public meetings were held by the firstrespondent the first respondent had not yet made up his mind as to whichtwenty three out of these public meetings he should admit. If in fact onlytwenty three public meetings were held and the particular furnished by thepetitioner included other public meetings, ths first respondent would havepromptly come out with an assertion that such and such public meetings,alleged by the petitioner were not held. But he could not and dirt notparticularise any such public meetings and deny them.

It is also significant to note that when the petitioner in a rather curiousmoreover summoned the first respondent to produce certain documents, the.first respondent stated that he did not have any list of public meetings he idin connection with his election and he did not have any record showing "theplaces where they were held including dates, names of the speakers whoaddressed or were to address" such public meetings. The first respondentalso stated in cross-examination that he had no record with him in supportof his statement that there were twenty three public meetings. It is ratherstrange and difficult to believe that the first respondent should not have anyrecord of the public meetings held by him in connection with his electionif the first respondent did not have anv such record, how could he in hisevidence give with any definiteness or certitude the dates and places of thetwenty three public meetings admitted by him. It is apparent that the firstrespondent refused to produce the record of the public meetings under thepretext that he did not have any such record, because he did not at thatstage, before the evidence of the petitioner was fully disclosed to him, wishto Commit himself to any specific public meetings and the record, if produc-

E.L.R.j KANWARI.AL GUPTA V. AMAR NATH CHAWLA 13

ed, would have gone against him and showed that many more than twentythree public meetings were held by him. The non-produdion of the recordof the public meetings under the 'pretext that against the first respondent.

There is also another circumstance which deserves to be noted at thisstage. The first respondent was summoned by the petitioner to reproduceinter alia applications for permission to hold public meetings made by himor on his behalf or for his benefit by any of his workers or election agents•or other agents and in answer to this summons he stated that he did notmake any such application nor was any such application made on his behalfor for his benefit by any of workers, election agents or other agents. Thefirst respondent added that Dr. Roshan Lai made "applications for permis-sion to the authorities as President of the Delhi Sadar District CongressCommiitee." it is obvious from these statements that until this time thefirst respondent did not thought out and formulated his defence in regardto the public meetings. The first respondent wanted to leave open an existin case the petitioner was able to show that more than twenty three publicmeetings were held and he, therefore, deftly and subtly threw out a veiledsuggestion implying that the public meetings were held by the Delhi SadarDistrict Congress Committee, This attitude of the first respondent betraysan anxiety to hold back the true facts in regard to the public meetings.

Tt may also be noted that even in the cress-examination of the petitionerand his witnesses, the first respondent did not put forward bis case as towhich were the specific public meetings held by him in connection with hiselection and which were not. It was only after the evidence or? behalf ofthe petitioner was closed and she first respondent knew what exactly wasthe case of the petitioner, that he for the first time in his evidence particu-larised twenty three specific public meetings admitted by him. This strategywas adopted obviously with the object that the twenty three public meeting.,named by the first respondent should fit in with the unimpeachabledocumentary evidence which might be produced by the petitioner and hiswitnesses and should not be falsified by such evidence.

With these broad general observations we now turn to consider ;heoral and documentary evidence in regard to the public meetings of the firstrespondent.

The first respondent in his evidence admitted the following twenty threepublic meetings and accepted financial responsibility for them :

1. 23-2-71 Malka Ganj

2. 19-2-71 Roshanara Road

3. 16-2-71 Ghanta Ghar, Subzi Mandi

4. 2-3-71 Clock Tower, Subzi Mandi

5. 24-2-71 Chhe Tooti in Pahar Ganj

6. S-3-71 Chowk Chhe Tooti

7. 22-2-71 Chuna Mandi

«. 19-2-71 , Tei Mondi

9. 2-2-71 Chowk Lachman Puri

10. 25-2-71 KatraKarim, Ram nagar

11. 2-3-71 Chowk Nimwala, Nabi Karim.

12. 25-2-71 Narayan Market13. 15-2-71 Chowk Tatu Shah, Bagichi TaTu Shah14. 18-2-71 Kasabpura

15. 20-2-71 Cowk Bara Tooti

16.17.18.19.20.21.22.23.

21-2-7121-2-7124-2-7113-2-711-3-71

16-2-7123-2-7!24-2-71

KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVI1

Depty GanjTelewaraTeliwaraChowk Kish'n Ga: jP- Biock, Andha MughalK. Block, Andha MughalNagia parkIn front of Birla Mills

These were the twenty three public meetings for which, according: tothe first respondent, furnishings and electric equipments were supplied byTandon Tent and Furniture House, Saini Electric Works and Agavwai lentHouse. Ths question is whether any further meetings were held" in connec-tion with the election of the first respondent. To establish that many more-public meetings than twenty three were held to promote the -.-:!e.:tionprospects of the first respondent, the petitioner led considerable oral as wellas documentary evidence.

We shali presently examine this evidence, hut before we do so, it wouldbe convenient to dispose of two objections of a preliminary nature raisedon behalf of the first respondent. The first respondent urged that thoughthe petitioner at one time contended that about forty to fifty public meetingswere held in connection with the election of the first respondent, he didnot adhere to this claim in the course of the arguments before the learnedTrial Judge and confined his claim only to nine public meetings in additionto the twenty three public meetings admitted by the first respondent, andtherefore, it was not now open to him in the present appeal to contend thatany further public meetings were held by the first respondent ever andabove the nine claimed before the learned Trial Judge. This object son ishowever, untenable because it is clear from the judgment itself, that thepetitioner could not have confined his claim to the nine public meetingsreferred to by the learned Trial Judge and the learned Trial Judge wasobviously under some misapprehension when he made observation to thateffect in the judgmen'.. Out of these nine public meetings, there were sixwhich were included in the twenty three public meetings admitted by thefirst respondent and if that be so, it is difficult to imagine how the petitionercould have claimed them as being in addition to those twenty three publicmeetings. The petitioner could notpossibly have confined his claim to thesenine public meetings, when out of them, six were those which were adira.tedby the first respondent, and couid not, therefore, be "in addition to theadmitted public meetings". In fact, as the subsequent discussion in thejudgment shows the learned Trial Judge actually proceeded to consider theevidence of the police officers and the officers belonging to the CID whichwas led on behalf of the petitioner for the purpose of proving various otherpublic meetings in addition to the nine referred to by the learned TrialJudge and he'd on a consideration of this evidence, that none of these publicmeetings cl-s mec; b^ tm petitioner was established. This exercise wouldhave been r '» L>v^_essary if the petitioner had given up his claim inregard to t i^ z n \ meetings and confined his argument only to the ninepublic m?;ti"<t- e ^ ' , ; a to by the learned Trial Judge.

It was then contended by the first respondent in a last desperate attemptto thwart ar* inquiry by this Court into the number of public meetings; thatthe petitioner had given particulars of only thirty three public meetings incompliance with the order made by the learned Trial Judge dated 6th August,.

K.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 15

1971 and it was therefore, not open to him to claim that any further publicmeetings were held by the first respondent and his argument should beconfined only to the thirty three public meetings specified in the particulars.This argument of the first respondent is also futile. It is clear from theparticulars furnished by the petitioner pursuant to the order dated 6thAugust, 1971 that the particulars of thirty three public meetings were givenby the petitioner under paragraphs 20(2)(ii) and 24 and not under paragraph25 of the petition. The petitioner had alleged in paragraphs 20(2) and 24

particulars were given by the petitioner specifically in reference to paragraphs20(2) and 24 and they Had rothing to do with the allegations in paragraph25. So far as paragraph 25 k concerned, the only particulars \yhieh thepetitioner was required to furnish were "details of the items or heads ofexpenses incurred by respondent No. 1", and the petitioner accordingly gaveItems or heads of expenses under the heading "Paragraph 25(1) of thepetition". The petitioner was not required and did not give particulars ofthe public meetings authorised by the first respondent. There is noihing,.therefore, in the particulars which debars the petitioner from agitating asto what was the actual number of public meetings held by the first respondent.

The area of Sadar Parliamentary constituency was comprised within thejurisdiction of four different police stations, namely, Roshanara Road,Paharganj, Subzimandi and Sadar Bazar. The Station House Officers postedto these four police stations were summoned by trie petitioner to giveevidence as regards the public meetings held within iheir respective jurisdic-tions. Khamraj Dutt (P. W. 1} was the first witness called on behalf ofthe petitioner. He was the Station House Officer at Roshanara Road policestation and he deposed from the records in his possession and filed a listPW 1 /1 showing that two public meetings were held by the first respondentwithin the jurisdiction of his police station, one at Nagira Park on 23rdFebruary, 1971 and the other near Birla Mills compounds on 24th February,1.971, both these public meetings are included in the twenty three publicmeetings admitted by the firs' respondent and we used noi, therefore, dwellon the evidence of this witness.

The next witness who save evidence on behalf of the petitioner wasRamesh Chand, Station House Officer from Sadar Bazar Police Station(P. W. 6). Hs prepared from the records in his possession a list showingthe public meetings held within the jurisdiction of his oolice station andfiled it in court as Ex. PW/6'5, The entries in this list have been thesubject matter of controversy between the parties and we shall, therefore,.refer to these en'ries in some detail. The list was broadly in three parts.One part expressly referred to public meetings, held by the New Congress,the second part to public meetings held by Jan Sangh and the third partwhich was headed "o'hers" to certain other public meetings. There werenine public meetings set out in the first tjart as having been organised bythe New Congress. The first eight were those included in the twenty threepublic meetings admitted by the first respondent. The ninth was a publicmeeting at Idaah Road which was addressed by the Prime Minister. Weshall deal with the Idgah Road meeting separately as it stands in a differentcatssory by itself. We are not concerned with the public meetings held bythe Jan .Sangh and we need not, therefore, refer to the second part. Thethird part was headed "others" and in this part eight public meetings were-set out as having been held on different dates. The question which waskeenly debated before us was as to what was the meaning of the heading

16 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVIJ.

"Others". The contention of the first respondent was, and that was acontention which found favour with the learned Trial Judge and on whicha large part of his judgment on this point rested; that the heading "Others"signified that the public meetings enumerated under that heading were heldby individuals or political parties other than the Congress and the Jan

• Sangb. The petitioner, on the other hand, urged that the heading "Others"was intended to indicate only that the public meetings referred to thereinwere other public meeting over and above those set out in the first <nidsecond parts and since the records did not show which were the political par-ties which held them, they were shown a separate category under this partici?-Jars.heading. The word "Others" was not intended to convey that these publicmeetings were of others, that is of individuals or political parties other thanthe Congress and the Jan Sangh. We think that the meaning sought to begiven by the petitioner is correct, and it must be preferred to that canvassed onbehalf of the first respondent. The list was admittedly prepared to RameshChand and he explained in his evidence to so many terms as to what he.meant by the heading "Others". He stated in his evidence, obviously refer-to ihe public meetings set out in the third part, that "the name of the partyis not mentioned against some of the meetings". These public meetingsmay have been held by the Congress or the Jan Sangh or any other individualor political party. The records from which the H';t was "prepared did no!show which were the political parties which held these public meetings andthey were, therefore, classified under the heading "Others". Ramesh Chanddid not say that these public meetings were held by some individuals orpolitical parties other than ihe Congress and the Jan Sangh and that i>. whythey were included under the heading "Others" nor was any such suggestionmade to him in cross-examination. The explanation given by Ran.K-shChand that the names of the political parties which held these public mesl-ings were not 'known and hence not mentioned in the list was not challeng-ed on behalt of the first respondent in cross-examination and if this explana-tion is to be accepted, as it must be, it is. apparent that these public meetingswere subsumed under the heading "Others" because the record dij notshow which vere the political parties which held them. The word "Others",meant merely "Other meetings" aad not meetings "of others", that is ofindividuals or political parties other than the Congress and the Jan Sangb,,We cannot therefore, say that merely because a particular public meetingfinds a place in H1..: third part under the heading "Others", it could not bea public meeting oi' the Congress. The third part would show that thepublic meetings., there referred to were held on the dates mentioned againstthem, but whether these public meetings were held by the Congress or theJan Sangh or any other individual or political party could be ascertainedonly from other evidence, because the records with the police did not showthe names of the political parties which held these public meetings.

The third witness from the police force summoned on behalf of thepetitioner was Chaman Lai (P. W. 7) who was the Station House Officerposted ai Paharganj Police Station. This witness also prepared from therecords in his possession a list showing the public meetings of the Congressheld within the jurisdiction of his police station and filed it in court asEx. PW 7/1. There were twelve public meetings shown in this list as havingbeen held by the Congress, but out of them, three public meetings, namely,one at Chunamandi on 17th February, 1971, the other at Arakashan Road,Bagichi Alaucidin on 27th February, 1971 and the third at. Chowk Lachman-pur on 1st March, 1971 appeared to have been cancelled. Thus, accordingto this "list, nine public meetings were held by the Congress within thejurisdiction of the Paharganj Police StaTion. Out of these nine public

6X.R.J KANWARLAL GUPTA V. AMAR NATH CHAWXA 17

meetings, seven were included in the twenty three public meetings admittedby the first respondent and we need not, therefore, refer to them. Thatleaves for consideration two public meetings which, according to the list,were held at Multani Dhandha on 18th February, 1971 and 22nd February,1971. So far as the public meetings at Multani Dhandha on 18th February,1971. is concerned, the contention of the first respondent was, and that wasthe contention which appealed to the learned Trial Judge, that it was ameeting of T. Sohan Lai who was a Congress candidate from the adjoiningKarol Bagh Parliamentary constituency and not a meeting of the firstrespondent. We do not think it possible for us to hold affirmatively thatthis public meeting was a meeting of T. Sohan Lai. The first respondentcould have easily summoned T. Sohan Lai who belonged the same politicalparty as he had established through his evidence that this was a publicmeeting of T. Sohan Lai, but the first respondent failed to do so. That,however, does not help the petitioner, because the burden is on the petitionerto show that this public meeting was a meeting of the first respondent andthe petitioner must discharge that burden on the evidence on record. Nowone fact which stands out from the evidence of Om Prakash Makkan (Rl/WI)is that a part of Multani Dhandha (within the jurisdiction of Paharganj,Police Station) fell within the area of the Karol Bagh Parliamentary consti-tuency and this fact could not be controverted on behalf of the petitioner.If a part of Multani Dhandha fell within the area of the Karol BaghParliamentary constituency, the possibility cannot be ruled out that publicmeeting of 18th February, 1971 might have been held by T. Sohan Lai inhis part of Multani Dhandha in connection with his election. That in factwas the suggestion made by Om Prakash Makkan (RI/WI) in his evidenceand it was repeated on behalf of the first respondent in the course of thearguments. This suggestion gains strength from the fact that amongst thespeakers at this public meeting, shown in the list Ex. PW 7/1, was T.Sohan Lai. There was no positive evidence led on behalf of the petitionershowing that this public meeting was held in that part of Multani Dhandhawhich "fell within the constituency of the first respondent. The onlyevidence on which the petitioner sought to rely in this connection was thatof Madan Lai Khuraria (PW 10), but that evidence merely referred to ameeting of the first respondent in Mulfani Dhandha and. as we shallpresently show, the first respondent did hold a public meeting at MultaniDhandha on 22nd February, 1971, and this evidence was obviously referableto that public meeting. The evidence on record does not, therefore, excludethe possibility thai the public meeting of 18th February, 1971 might havebeen held by T. Sohan Lai in his part of Multani Dhandha which also fellwithin the jurisdiction of Pahar-Ganj Police Station and we cannot holdit proved that this public meeting was a meeting of the first respondent.The petitioner, however, stands on a firmer footing in regard to the publicmeeting at. Multani Dhandha on 22nd February, 1971. This public meetingis clearly shown in the list as having been held as a meeting of the Congressand Ex. PW7/3, which is a copy of the report intimating permissionsgranted to the .Congress for holding various public meetings shows thatpermission was granted for holding this public meeting. The only groundon which the learned Trial Judge rejected this public meeting was that itwas shown as cancelled in the list Ex. PW 7/1. But this was an obviouserror committed by the learned Trial Judge, because if we took at the listEx PW 7/1 , it is dear that, unlike the three public meetings at Chunamandi,Arakshan Road Bagiehi Alauddin and Chowk Lachmanpuri, there js noendorsement of cancellation against this public meeting and the list clearlyshows that this meeting was held, but the total number of persons attendingit and the names of the speakers were not known and hence not mentioned

18 KANWARLAI. GUPTA V. AMAR NATH CHAWLA [VOL. LVII

in the records. It was suggested on behalf of the first respondent in thecourse of arguments that this public meeting might also be of T. Sohan Laibut this suggestion is wholly untenaole. In the first place, ouf of sevenpublic meetings for which permissions were granted under Ex. PW 7/3, sixwere admittedly public meetings in connection with the election of the firstrespondent, and therefore, it would be reasonable to infer that the seventhpublic meeting at Multani Dhandha on 22nd February, 1971 must als0 bea public meeting of the first respondent. Secondly, it is difficult to believethat within four days of the first public meeting at Multani Dhandha on 18thFebruary, 1971. T. Sohan Lai should have held another public meeting atthe same place. It is more probable that this public meeting should havebeen held by the first respondent for whom this was the first and the onlymeeting in this area. Lastly, Madan Lai Khurana (PW) deposed to a publicmeeting of the first respondent at Multani Dhandha and this evidence wasnot challenged at all in cross-examination and it was not even suggestedto this witness that no meeting was held by the first respondent in MultaniDhandha. We, therefore, hold, on the strength of the list PW 7/1 and thepermission PW 7/3 supported by the evidence of Madan Lai Khurana(PW 10), that a public meeting was held at Multani Dhandha on 22ndFebruary, 1971 in connection with the election of the first respondent.

Then we come to the evidence of Ram Murti Sharma (PW 8) who wasthe Station House Officer at Subzimandi Police Station. This witness fileda list Ex. PW 8/3 showing the public meetings held by the Congress withinthe jurisdiction of his police station and giving particulars of such publicmeetings. There were only six public meetings shown in this list and theywere all included in the twenty three public meetings admitted by the first.respondent. Since no further public meetings appeared to have been heldby the Congress according to this list, we need not say anything more aboutit. The petitioner however, relied on a letter dated 12th February, 1971Ex. PW 8/2 addressed by the Sub-Divisional Magistrate to Dr. Roshan Laiaccording permission to hold public meetings at certain places on the datesshown against them. The contention of the petitioner was that sincepermission was granted to Dr. Roshan Lai to hold these public meetingsthey must be presumed to have been held and must be added to the twentythree public meetings admitted by the first respondent. Now, out of sevenpublic meetings for which permission was granted by this letter, four wereadmittedly held as shown in the list Ex. PW 8/3. The question is whetherthe other three public meetings, namely, one at 'K' Block, Andha Mughalon 18th Febraaxy, 1971, the other at Malka Ganj on 22nd February, 1971and the third at Ghanta Ghar on 3rd March, 1971 for which permission wasgranted, were held. We may straightaway dismiss the public meetingalleged to have been held at Ghanta Ghar on 3rd March, 1971, for there isno evidence at all to show that this public meeting was held and Ram MurtiSharma (P. W. 8) actually stated in his evidence that the permission for thispublic meeting was cancelled by the Sub-divisional Magistrate by his orderdated 13th February, 1971. Indeed, it is difficult to see how this publicmeeting could possibly have been held on 3rd March, 1971 within 48 hoursbefore the date of polling. So far as the other two public meetings, oneat 'K' Block, Andha Mughal on 18th February, 1971 and the other atMalka Ganj on 22nd February, 1971 are concerned, they also stand on thesame footing and cannot be regarded as proved, because there is no evidenceat all to show that these two public meetings were actually held pursuantto the permission granted by the Sub-divisional Magistrate.

We may then refer to the evidence of ill? CID officers summoned bythe petitioner to prove the holding of various public meetings by the first

S.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 19

respondent. The first witness belonging to this group was Mahender PalSingh (PW 20) who was an Inspector CID special Branch at Tees Hazari.He stated in his evidence that during the election period his staff used tocover election meetings held by various political parties and they includedpublic meetings held by the first respondent. He further stated that theofficers who were sent to cover the public meetings used to attend themand then submit, either on the basis of the shorthand notes taken downby them or from memory, reports of the speeches made at these publicmeetings. He was then asked to state from his records as to what werethe public meetings held in the Sadar Parliamentary constituency whichwere covered by his staff. He, however, claimed privilege in respect ofthe records brought by him and produced an affidavit of the InspectorGeneral of Police in support of his claim of privilege. The affidavit wasplainly inadequate as it merely repeated the language of section 123 ofthe Evidence Act under which the privilege was claimed, without informingthe Court as to how the records in respect of which the privilege was claim-ed well within the terms of the section. The learned Trial Judge, there-fore, rejected the claim for privilege based on this affidavit but gave afurther opportunity to the Inspector General of Police to file a properaffidavit claiming privilege on 4th January, 1972. It appears that theInspector General of Police was not ready with his affidavit on 4th Janu-ary, 1972 and he asked for further time upto 10th January, 1972. Thelearned Trial Judge granted him time but made an order that the counselfor the Inspector General of Police should give to the counsel of thepetitioner by 5th January, 1972 "a list of the persons who were deputedto attend the Congress election meetings in Sadar Parliamentary consti-tuency together with their present official addresses the dates of the meet-ings attended, the times of the meetings and the list of the speakers at suchmeetings". In compliance with this direction, a chart containing the requi-site particulars prepared from the records was handed over to thecounsel for the petitioner on 5th January, 1972. This chart referred totwenty two public meetings held in support of the first respondent in SadarParliamentary constituency and gave dates and places of these public meet-ings, the names of the speakers who spoke at these public meedngs andthe officers who covered them. The Inspector General of Police thereafterfiled another affidavit dated 6th January, 1972 claiming privilege on theground that the records contained "the mental notes and reports of officialswhich are made by public officers in the course of the discharge of theirofficial duties", for the benefit of the CID Special Branch, and the practiceof keeping such documents was necessary for the proper information ofthe CID Special Branch, and the disclosure of these documents "wouldlead to injury to public interest and prejudice the working of the CID Spe-cial Branch. And moreover, these documents were unpublished officialrecords relating to the affairs of the State". The learned Trial Judge, byan order dated 12th January, 1972 upheld the claim of privilege made onthe strength of this affidavit. The result was that the reports made bythe officers who covered the public meetings of the first respondent, whichcomprised inter alia the mental notes made by them, were shut out fromthe petitioner and a very valuable piece of evidence which would haveestablished beyond doubt what were the public meetings held by the firstrespondent was denied to the petitioner. There can be no doubt tha1

these reports were made by public servants in discharge of their officialduty and thev were relevant under the first part of section 35 of the Eyi-

DuT Dy r e a s o n Of ( " , e u ' u c j I I W L J C uy i u ^ i v a i i i v - i i i i i m „> >>wc_.. „ > , . . • ^

the claim of privilege, these reports were removed from the ken of the

20 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. L / l

petitioner as well as the learned Trial Judge. The petitioner contendedbeiore us that the learned Trial Judge was in error in upholding the claimot privilege and that the reports should have been made available to thepetitioner because it is difficult to see how, barring any observations ornotings made by the officers by way of comment or opinion, the restof the reports containing factual data could possibly be regarded as privi-leged. The learned Trial Judge himself could have looked at the reportsfor the purpose of satisfying himself as to what was the nature or thestatements contained in the reports and whether they were privileged, andif so, to what extent, but the learned Trial Judge apparently did not chooseto do so. However, it. is not necessary for us. to decide this question ofprivilege and we need not express any final opinion upon it, since we findthat the officers who covered these public meetings and made reports havetiieniselves given evidence.on behalf of the petitioner and though they didsuffer from "the handicap that they could not refresh their memory by look-ing at the reports, they have given fairly reliable evidence in regard to thepublic meetings covered by them and the exclarion of the report's from theevidence is, therefore, really of not much consequence. Moreover, th;; chartfurnished by the counsel for the Inspector General of Police to the peti-tioner gives sufficient information as to the dates and places of the publicmeeting held in connection with the election of the first responded, andthe names of the speakers who spoke at those public meetings. The peti-tioner made an application to the learned Trial Judge being IA No. 645of 1972 for taking this chart in evidence and marking it as an exhrm inthe case but the learned Trial Judge, by an order dated 20th April, 1972,rejected this application. We do not think the learned Trial Judge; wasright in rejecting this chart out of hand as a document without any eviden-tiary value whatever. It is clear that the entries in the reports mad; bythe officers stating the dates and places of the public meetings covered bythem and the names of the speakers at those public meetings could notpossibly be privileged and in fact, as appears clearly from the afiidavitclaiming privilege, the Inspector General of Police did not claim privilegein respect of these particulars entered in the reports. The claim for privi-lege, made by him was in respect of reports of speeches made at the publicmeetings since they were based on mental notes and were not "verbatim/copies of the, speeches of the speakers". It was for this reason that thelearned Trial Judge directed that a chart showing the dates and piacv ofthe public meetings and the names of the speakers should be compiledby the Inspector General of Police and handed over to the counsel for thepetitioner. This chart was obviously to be prepared from th" official re-cords in the possession of the Inspector General of Police which ^ou1dbe relevant under the first part of section 35 of the Evidence Act. When.this direction was given by the learned Trial Judge, the first respondentdid not raise any objections, though the furnishing of the chart wou'd beclearly tantamount to production of the relevant part of the official >e:o:dscontaining particulars in regard to the dates and places of the public- meet-itias and the names of the speakers. The chart furnished by the I n s o ^ o rGsneral of Police in compliance with this direction of the learned TrialJudge was therefore, clearly admissible in evidence. The Inspector Gene-ral of Police, in fact, affirmed this chart in his affidavit claiming the f".vi--lose .ind said in paragraph 3 of that affidavit that the chart had been sup-plied to the counsef of the petitioner "through the witness InspectorMohinckr Pal Singh. It was suggested on behalf of the first respondentfha* there was nothing to show that this chart produced by the petitioneralong with his application IA No. 645 of 1972 was the same as that givenby the Inspector General of Police. But this suggestion is wholly unten-able It is nothing but an after thought. No such plea was put forward

E.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 21

by the first respondent in reply to IA No. 645 of 1972. The first respon-dent did not dispute in the affidavit filed by him in reply to this application,that the chart produced by the petitioner was not the same as that handedover to him by the Inspector General of Police, The first respondent thencontended that if this chart were treated as evidence, he would be deprivedof an opportunity of cross-examining the CID officers who made the re-ports or maintained the official records from which the chart was prepared,But that is not argument, because even if the reports made by CID officersor the official records maintained by them had been produced by theInspector General of Police, they would have been admissible in evidenceunder the first part cf section 35 of the Evidence Act, without any oralevidence as to their contents being required .to be given by the CID officerswho made the reports or maintained the official records. The petitioneris, therefore, not unjustified in asking us to treat the chart as a piece ofevidence with probative value, though it must be said that it is weak typeof evidence and standing by itself without anything more, it cannot be re-garded, sufficient to establish the holding of a public meeting by the firstrespondent. It can, however, certainly be relied upon as a corroborativepiece of evidence which may be considered along with other evidence forthe purpose of deciding whether a particular public meeting was held inconnection with the election of the first respondent.

We mav not turn to consider the oral evidence of the CID officers iflregard to the specific public meetings held in connection with the electionof the first respondent. But before we do so, we mav refer to one generalcriticism levelled by the learned Trial Judge for disbelieving the oral evi-dence of the CID officers. Whenever a CID officer deposed to a publicmeeting held by the first respondent, which was not to be found in thelists PW 6/5. PW 7/1 and PW 8/3, the learned Trial Judge promptly re-jected the evidence and refused to accept the public meeting on the groundthat if such a public meeting had taken place, it would have certainlv founda place in one of these lists and the absence of mention of it in these listsclearly indicated that it must not have taken place. This approach of thelearned Trial Judge is in our opinion .erroneous. It is obvious that thelists Ex. PW 6/5. PW 7/1. and PW 8/3 are not exhaustive of all the pub-lic meetings held within the jurisdiction of the respective police stations.They refer only to these public meetings where the police station staffwas sent for maintenance of law and order. It is quite possible that theremight have been other public meetings of which the police station officershad not notice and which might not have been covered by the policestation staff and hence not entered in the registers maintained by the policestations. In fact, Umesh Chandra stated in his evidence that in JFebruary.1971, twenty four election meetings were held within the jurisdiction ofhis police station on behalf of various parties and yet the list Ex. PW 6/5shows only eighteen public meetings. The absence of mention of a publicmeeting in the lists Ex. PW 6/5, PW 7/1 and PW 8/3 cannot, therefore,

• be a ground for disbelieving the testimony of an independent and dis-interested witness like a CID officer. Moreover, it is difficult to appre-ciate how the oral testimony of a witness can be contradicted by a nega-tive inference to be drawn from the absence of an entry in the registeror list maintained by another witness, when that other witness has notstated in his evidence that his register or list was exhaustive and not otherpublic meetings were held. It may also be noted that no question was put toany of the police station officers on behalf of the first respondent suggest-ing that the list Exts. PW 6/5, PW 7/1 and PW 8/3 were

(2) (1972) 2 SCR. 6463—345 Elec, Com /NO/SI

22 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVII

exhaustive and no public meetings other than those shown in ihsse listswere held within the respective jurisdictions of their police stations. Theabsence of mention of a particular public meetings in the lists Ext PW6/5, PW 7/1 and PW 8/3 cannot, therefore, be relied upon as a circum-stance for disbelieving the testimony of the CID officers in regard to theholding, of such public meeting. The learned Trial Judge also relied verymuch on the evidence of the first respondent and his witnesses denyingthe holding of the public meetings deposed to by the CID officers but suchdenial by parties and interested witnesses can have no meaning in the faceof positive evidence of the CID officers supported by the chart furnishedby the Inspector General of Police and no weight can attach to it. Asobserved oy this Court in Rahim Khan v. Khurshid Ahmad (6) (C.A. 816of 1973, decided on 8th August, 1974):

"Negative evidence is ordinarily no good to disprove the factum ofmeetings."

Turning to the oral evidence of the CID Officers, the first CID officerto whom we must refer in this connection is Umesh Chandra (PW 39),This witness stated that he covered several election meetings in SadarParliamentary Constituency during the General Elections of 1971 andamongst others, he attended the public meetings of Chowk Chee Tooti,Ghanta Ghar, Tel Mandi, Amarpuri Colony, Chowk Azad Market andnear Imperial Cinema. He could not give the dates of these public meet-ings from memory, but it is clear from the chart furnished by the InspectorGeneral of Police to the petitioner that these six public meetings were heldon 24th February, 1971, 16th February, 1971, 19th February." 1971, 25thFebruary, 1971, 26th February, 1971, and 22nd February. 1971. Out of•these six pubiic meetings, three, namely, one at Chowk Chee Tooti on 24thFebruary. 1971, the other at Ghanta Ghar on 16th February. 1971 andthe third at Tel Mandi on 19th February, 1971 were among-.? the twenty threepublic meetings admitted by the first respondent. So far as the publicmeeting near Imperial Cinema on 22nd February. 1971 js concerned, thatwas also, according to the first respondent, included in the admitted twentythree public meetings. The contention of the first respondent was thatthis public meeting was the same as the one at CjsuHa Mandi on 22ndFebruary, 1971 admitted by him and was not an additional meeting. Thiscontention appears to be well founded. It is clear from... the repon ofpermissions Ex. PW 7/3 that Imperial Cinema is in Chuiia Mandi andin fact a permission was granted under Ex. PW 7/3 for holding a publicmeeting in Chuna Mandi in front of Imperial Cinema on 27th February,1971, though it was subsequently cancelled as appearing from the list Ex.PW 7/1. "The first respondent also stated in his evidence .hat there wasa meeting in Chuna Mandi in front of Imperial Cinema on 22nd February,1971. The public meeting near Imperial Cinema on 22nd February, 1971,deposed to by Umesh Chandra was, therefore, the same as the public meet-ing at Chuna Mapdi admitted by the first respondent. That leaves forconsideration two public meetings, one at Amarpuri Colony on 25th Febru-ary, 1971, and the other at Chowk Azad Market on 26th February, 1971.Both these public meetings were disputed by the first respondent. Butthe evidence given by Umesh Chandra (PW 39) supported by the relevantentries in the chart shows beyond doubt that these two public meetingswere held by the first respondent. There was hardly any c^oss examina-tion of Umesh Chandra (PW 39) on this point. No suggestion was madeto him that he was an interested witness and indeed such a suggestioneould not be made as he was a CID officer, it was not even put to himthat these two public meetings did not take place as deposed co by him.

E.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 2 3

The only question put to this witness was as to how he remembered theplaces of the public meetings deposed to by him and his frank answerwas that the places of these public meetings were stated by him frommemory. There is no reason why this witness should be disbelieved merelybecause he gave the places of the public meetings attended by himfrom memory. In fact, as pointed out above, the chart furnished by theInspector General of Police clearly supports his oral evidence. The learn-ed Trial Judge rejected the evidence of this witness on two grounds Oneground was that this witness did not state that the public meetings deposedto by him were Congress meetings of the first respondent. This groundis fallacious, in that it overlooks the positive evidence given by this witnessthat the first and fifth respondents spoke at these public meetings, thoughof course he could not say whether both of them spoke in all the pubHcmeetings or in only some of them. Moreover, the chart furnished bythe Inspector General of Police shows the names of the speakers at thesepubiic meetings and it is evident from these names that these public meet-ings were Congress meetings of respondent No. 1. The other groundrelied on by the learned Trial Judge was that the claim of the petitionerin regard to the public meetings at Amarpuri Colony and Chowk AzadMarket was belied by the list Ex. PW 6/5 in which, according to the learn-ed Trial Judge, the public meeting at these two places were stated to beof political parties 'Other' than the Congress or the Jan Sangh. Thisground is also untenable and for two reasons. In the first place, the listEx. PW 6/5 does not refer to any public meeting at Amarpuri Colony on25th February, 1971 or Chowk Azad Market on 26th February, 1971 underthe heading 'Other' and none of these two public meetings deposed to byUmesh Chandra (PW 39) finds a place in list Ex. PW 6/5. Secondly, asalready pointed out above, the heading 'Other' does not indicate that apublic raeeting under that heading was a meeting of any individual or poli-tical party other than the Congress or the Jan Sangh. We must, therefore,hold, on the strength of the evidence of Umesh Chandra (PW 39) supportedby the chart furnished by [he Inspector General of Police, that in additionto the twenty three public meetings admitted by the first respondent, twofurther public meetings were held in connection with the election of the firstrespondent, namely one at Arnarpuri Colony on 25th February, 1971 andthe* other at Chowk Azad Market on 26th February, 1971.

The next witness whose evidence we must consider is Ranbir Singh(PW 49), who was at the material time a Sub Inspector in CID SpecialBranch. He has stated that he covered three or four election meetings ofthe first respondent, and though he could not remember the sequence, heasserted that these election meetings were at Chowk Chee Tooti, ClockTower, Chowk, Tatoo Shah Bagichi and Pahari Dhiraj. He further saidthat the first respondent spoke at all these public meetings and the fifthrespondent also spoke at one or two of them. He also_ gave the namesof some of the other speakers at these four public meetings. These fourpublic meetings also find a place in the chart furnished by the InspectorGeneral of Police and according to that Chart, the public meeting at ChowkChee Tooti was held on 12th February, 1971, the public meeting at ChowkTatoo Shah Bagichi was held on 15th February, 1971, the Public meetingat Clock Tower was held on 2nd March, 1971. The second and the thirdof these public meetings were included in the twenty three public meetingsadmitted by the first respondent and the dispute was only as regards thefirst public meeting at Chowk Chee Tooti on 12th February 1971 and thefourth public meeting at Pahari Dhiraj on 27th February, 1971. WewU.first consider the position in regard to the public meeting at Pahari Dftira)on 27th February, 1971. The learned Trial Judge rejected the evidence of

2 4 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL. LVII

Ranbir Singh (PW 49) in regard to this public meeting on the ground thatthe list Ex. PW 6/5 showed this public meeting as "a meeting of politicalparties other than the Congress and the Jan Sangh" and the first respondenthad in his evidence denied that any such public meeting was held by him.We do not think that the learned Trial Judge was justified in taking thisview. In the first place, if we look at the list Ex. PW 6/5, it shows apublic meeting at Pahari Dhiraj on 27th February, 1971 under the heading'Others'. We have already pointed out that the heading 'Others' does notmean anything more than other meetings and merely because a particularpublic meeting finds a place under the heading, it does not mean that itwas not a meeting of the Congress. The list Ex. PW 6/5 does not, there-fore, if any way contradict the evidence of Ranbir Singh (PW 49). At thispoint, secondly, the evidence of Ranbir Singh (PW 49) is supported bythe entry at serial No. 18 in the chart furnished by the Inspector Generalof Police which shows that a public meeting was held in support of thefirst respondent at Pahari Dhiraj on 27th February, 1971 at which, amongstother, respondents Nos. 1 and 5 were the speakers. Thirdly there is noreason why an independent witness like Ranbir Singh (PW 49), who hasabsolutely no interest in the result of the litigation one any or the other,should be disbelieved. It is true that the places of the four public meetingsdeposed to by him were mentioned in the summons served upon him andit was for that reason that he could give the names of these places in hisevidence, but that does not detract from the value of his evidence, becauseunless these places mentioned in the summons were correct, he would nothave subscribed to then in his evidence. He would have said "I do not re-member". But he gave evidence in regard to these public meetings becausehe remembered though his memory was proved by what was stated in thesummons. He even gave the names of some of the speakers and deposedbroadly to the arrangements made at these public meetings. Not even asuggestion was made to him that the public meeting at Pahari Dhiraj wasa meeting of some other political party or individual. It may also be notedthat apart from Ranbir Singh (PW 49), Kundanlal (PW 27) and Chunilal(PW 32) also deposed to the public meeting at Pahari Dhiraj and there isBo reason why their evidence should not be accepted, particularly whenKundan Lai (PW 27) was an independent witness without any politicalaffiliation and Chuni Lai (PW 32) was also a person belonging neither tothe Congress nor to the Jan Sangh. We, therefore, hold that a public meet-ing at Pahari Dhiraj was held in connection with the election of the firstrespondent on 27th February, 1971.

So far as the public meeting at Chowk Chee Tooti 12th February. 197!is concerned, it is clearly established by the evidence of Ranbir Sin.?h (PW49) supported by the entry at serial No. 1 in the chart furnished by theInspector General of Police. It may be noted that Ranbir Singh (PW 49)stated in his evidence that the speakers at the public meeting at Chowk CheeTooti were the first respondent, fifth respondent, Shiv Charan Gupta andtwo or three others. This statement tallies completely with the names ofthe speakers given in the chart furnished by the Inspector General of Policeagainst the entry at serial No. 1. We do not see any reason why the evi-dence of Ranbir Singh (PW 49), who is a wholly independent witness shouldbe rejected and the denial of the first respondent, who is a party to thelitigation, or Ms supporters should be preferred. It is true that there is nointention of this public meeting at Chowk Chee Tooti in the list Ex. PW 7 /1 ,but. as pointed out above, the absence of mention of this public meetingin the list Ex. 1/1, cannot be a ground for disbelieving the testimony of anindependent and disinterested witness like Ranbir Singh (PW 49). We


must, consequently, hold that a public meeting of the first respondent washeld at Chowk Chhe Tooti on 12th February, 1971.

We then go on to consider the evidence of Daulat Ram (PW 42) whowas also at the material time Sub-Inspector in the CID Special Branch. Hesaid in his evidence that he covered two election meetings of the first res-pondent, one at Chowk Bara Tooti and the other at Hathikhana, Bahadur-garh Road. The chart furnished by the Inspector General of Police showsthat the public meeting at Chowk Bara Tooti was held on 20th February,1971, while the public meeting at Hathikhana, Bahadurgarh Road was heldon 26th February, 1971. So far as the public meeting at Chowk Bara Tootion 20th February, 1971 is concerned, it was admitted by the first respondent,but the public meeting at Bahadurgarh Road on 26th February, 1971 wasdisputed and first respondent denied that any such public meeting was heldby him. The evidence of Daulat Ram (PW 42) in regard to this publicmeeting is, however, very clear and there is no reason why it should notbe accepted merely because he has deposed to this public meeting frommemory. In fact the memory of this witness was severely tested in cross-examination by the first respondent but he stood the test firmly and wasunshaken. There is nothing suggested as to why the. testimony of this wit-ness should be rejected. This witness not only deposed to the holding ofthe public meeting at Bahadurgarh Road but actually gave the names ofthe speakers at this public meeting, namely, the first respondent, the fifthrespondent, Mr, Mir Mushtaq Ahmed and Sardar Nazir Singh. Thesenames tally completely with the names of the speakers given in the chartfurnished by the Inspector General of Police. We also find that the listEx. 6/5 shows that a public meeting at Bahadurgarh Road was held on 26thFebruary, 1971. It is undoubtedly mentioned under the heading 'others'but, as we have already explained, this does; not mean that it could not bea meeting of the Congress. It is significant to note that not even a sugges-tion was made to this witness that the public meeting at Bahadurgarb Roadwas a meeting of some other political party or individual. Such a sugges-tion would obviously have been futile, because the evidence of the witnesswas that the only meetings he covered were those of the Congress and theJan Sangh and this public meeting deposed to by him could not, therefore,be a meeting of any other political party or individual. We are, therefore,satisfied beyond doubt that a public meeting at Hathikhana, BahadurgarhRoad was held on 2bth February, 1971 in connection with the election ofthe first respondent.

The next witness in this ground is Sukhbir Singh (PW 46) who was atthe material time a Head Constable in CID Special Branch. He said inhis evidence that he covered one meeting of the first respondent in SadarParliamentary Constituency and that was a meeting at Chhoti Masjid, BaraHindu Rao on 26th February, 1971. The speakers at this meeting accord-ing to him, were O. P- Jain, Mir Mushtaq Ahmed, Narendra Kumar andDada Ataf-ul-Rehman. This evidence clearly establishes the holding ofthis public meeting by the first respondent and there is no reason wnv itshould not be accepted, particularly when we find that it has not been chal-lenged at all in cross-examination by the first respondent. It is no doubt truethat Subhash Arya (PW 35) stated in his evidence that a public meetingwas schedule to be heid at Bara Hindu Rao on 26th February, 1971, butit was cancelled because he could not arrange for any speakers at this publicmeeting. But we fail to see how this statement of Subhash Arya (PW 35),who was admitted as a partisan witness, could be referred to the testimonyof Sukhbir Singh (PW 46) was wholly independent and disinterested, having


no interest in the result of the litigation. It may also be noted that an ap-plication Ex. PW 6/1 for permission to hold this public meeting was madeby Dr. Roshan Lai on 26th February, 1971, that is on the same day onwhich this public meeting was to be held and it is difficult to believe thatsuch application could have been made by Dr. Roshan Lai in the morningof 26th February, 1971 without making the necessary arrangements forspeakers at this public meeting which was to be held the same evening. Thelearned Trial Judge rejected the evidence of Sukhbir Singh (PW 46) in re-gard to this public meeting on the ground that this public meeting was shownin the list Ex. PW 6/5 as a meeting organised by other political parties andnot by the Congress. But this ground is, with the great respect to thelearned Trial Judges, wholly misconceived because we do not find any refer-ence to this public meeting in the list Ex. 6/5 even under the heading'Others'. Not only is the evidence of this witness uncontradicted by anydocumentary evidence but it actually finds support from the entry at serialNo. 16 in the chart furnished by the Inspector General of Police where itis shown as a meeting held in support of the first respondent. The namesof the speakers given by this witness also tally with the names set outagainst the entry at serial No. 16 in the chart furnished by the InspectorGeneral of Police. We must, therefore, accept the case of the petitioner thata public meeting at Chhoti Masjid, Bara Hindu Rao was held by the firstrespondent on 26th February, 1971.

That takes us to the evidence of Shyam Singh (PW 45). who was atthe material time posted in the CID Special Branch. He said in his evi-dence that he covered two public meetings of the first respondent, one atChowk Nabi Karim on 26th February, 1971 and the other at Chowk Neem-wala in Nabi Karim on 2nd March, 1971. The second public meeting atChowk Neemwala on 2nd March, 1971 was included in the twenty threepublic meetings admitted by the first respondent, but the first public meetingat Chowk Nabi Karim held on 26th February, 1971 was disputed by himand the case of the first respondent was that, no such public meeting washeld. We do not see any reason why the evidence of Shyam Singh (PW45) in regard to the public meeting at Chowk Nabi Karim on 26th Febru-ary, 1971 should not be accepted. If we look at the cross examination of

' this witness by the first respondent, we do not find any challenge at allto the statement of this witness in regard to the holding of the public meet-ing. Moreover, the evidence of this witness if supported by the statementof Chunni Lai (PW 32) in cross examination that the Congress held a publicmeeting inter alia at the Nabi Karim Chowk. But more than this supportfrom the oral evidence of Chunni Lai (PW 32) is the corroboration to befound in the Chart furnished by the Inspector General qi Police. The entre-at serial No. 14 in this chart clearly supplies authenticity and veracity tothe evidence of Shyam Singh (PW 45) that this public meeting did take placeas claimed by the petitioner. The names of the speakers given by this wit-ness in his oral evidence find a place amongst the speakers mentioned in thischart. There can, therefore, be no doubt despite the denial of the firstrespondent, that a public meeting at the Chowk near the Police Post, NabiKarim was held by the first respondent on 26th February, 1971.

The petitioner also claimed that two other public meetings were heldby the first respondent in connection with his election, one at ChowkSinghara on 18th February, 1971 and the other at Tonga Stand, Pahar Ganjon 2nd March, 1971. These two public meetings are shown as having beenheld in support of trie first respondent in the entries at serial No. 84 and 21in the chart furnished by the Inspector General of Police. The CID officerier

E.L.R.] . KANWARLAL GUPTA V. AMAR NATH CHAWLA 2 7

who, according to this Chart, covered these two public meetings was UmeshChandra (PW 39), but since Umesh Chandra (PW 39) was precluded fromreferring to the reports made by him contemporaneously for the purpose ofrefreshing his memory and required to give evidence only on the basis ofwhat he re-called be omitted there two public meetings in the evidence given,by him. There was also no other evidence in support of these two publicmeetings. The case of the petitioner, therefore, rested only on the entriesat serial Nos, 4 and 21 in the chart supplied by the Inspector General ofPolice. But as pointed out above, this chart is definitely weak piece ofevidence for the purpose of holding, on the strength of its evidenciary valuealone without anything more, that these two public meetings, namely oneat Chowk Singhara on 18th March, 1971 were held in support of the election.of the first respondent.

Then there were three other public meetings claimed by the petitionerto have-been held by the first respondent, namely one at Katra Karimen on17th February, 1971. and the.other at Chuna Mandi near Imperial Cinema,on 17th February, 1971 and the third at Tel Mandi 015 19th February, 1971There is no evidence at all to show that these three public meetings wereheld. The only piece of the evidence on which the petitioner could placereliance was the copy of the report Ex. 7/3 which showed the permissionsgranted by the Sub-Divisional Magistrate to the Congress to hold certainpublic meetings which included inter alia these three public meetings. Butfrom the mere factum of permission, without any further evidence, we can-not come to the conclusion that these three public meetings were held inconnection with the election of the first respondent. The same position ob-tains in regard to three other public meetings claimed by the petitioner,namely, one at 'K' Block, Andha Mughal on 1.8th February. 197! andthe other at the Malka Ganj on 22nd February. 1971 and the third at GMntaGhar on 3rd March, 1971. There is no evidence in support of these threepublic meetings. What we have are only the applications for permissionto hold these "three public meetings and they are clearly insufficient to esta-blish that these three public meetings were held. In fact, the public meet-ing at Ghanta Ghar on 3rd March, 1971 could never have been held becauseof the ban on public meetings within io;-t\eigir hours before the date ofpolling.

We then produced to consider the public meeting which, according tothe petitioner, was held in Gulabi Bagh. The only evidence in support ofthis public meeting is a reference to it in the bill of Agarwal Tent House,Ex. R-26. But, as we shall presently show, this Bill of Agarwal TentHouse cannot be regarded as genuine and it would not, therefore, be correctto base any finding on a statement contained in it. In the absence of anypositive evidence on behalf of the petitioner in support of this public meet-ing, the denial of the first respondent must be accepted. We, therefore, re-ject the case of the petitioner that a public meeting was held by the firstrespondent at Gulabi Bagh.

That takes us to the public meeting at Pul Bangash on 26th February,1971. Ex. PW 6/1 is the application made by Dr. Roshan Lai for permis-sion to hold a public meeting at Chowk Pul Bangash on 26th February,1971 and, in the absence of any evidence to the contrary we must resumethai the permission applied for was granted. The list Ex. PW'6/5 showsthat a public meeting was held at Pul Bangash on 26th February. 1971.The reference in this public meeting is under the heading 'others' but, aswe have already discussed, this circumstance does not militate against thispublic meeting being a meeting of the Congress. Then there is the posi-tive evidence of Inder Mohan Bharadwaj (PW 30) that there was a public


meeting of the first respondent at Pul Bangash on 26th February, 1971 andwhen he was passing along, he saw pamphlets, like annexure 'A' being dis-tributed at this public meeting. It appears that the statement of this wit-ness in regard to the factum of this public meeting was not challenged incross-examination on behalf of the first respondent. The only challengewas to the accuracy of what he saw at this public meeting. When we turnto the evidence led on behalf of the first respondent in regard to this publicmeeting, we find a very interesting feature which is eloquent of the truth.Om Prakash Makan (RIWI) admitted in his crcssl-examination on 4th Febru-ary, 1972 that he went to another meeting of the first respondent and theplace where this meeting was held was Pul Bangash. But this cross-examination was not completed on 4th February, 1972. It was continuedon 7th February, 1972 and in the course of the further cross-examinationon that day he seized the opportunity to go back on his previous admis-sion and tried to explain it away by saying: "I did not see any meeting atPul Bangash. I had gone there to see Trilochan Singh was not there.Amongst the people returning was my brother-in-law Bira Nath and hetold me that there had been a meeting in some house". This was a crudeand clumsy attempt to explain away an admission unwittingly made and itcannot deceive us. The admission of the witness stands unimpaired andthere can be no doubt that it represents the truth. When Subhash Arya(PW 35) was cross-examined in regard to this public meeting, he admittedthat this public meeting was scheduled to be held at Chowk Pul Banp?shon 26th February, 1971, but it could not be held because h : v,as not ableto arrange for any speakers. This statement of Subhash Arya (PW 35)clearly implies that the permission for holding this public meeting was ob-tained, but the reason for not holding it was different. We. however, findit difficult to believe that this public meeting could not be held on accounr.of v/ant of speakers. It is a most unconvincina explanation given &•••Subhash Arya (RIW 35) for the purpose of explaining away this publicmeeting. In fact, the list Ex. PW 6/5 clearly shows that a public meetingwas held at Pul Bangash on 26th February, 1971. We are, therefore, satis-fied from the evidence on record that this public meeting was held m con-nection with the election of the first respondent.

The claim of the petitioner in regard to the public meeting said to havebeen held by the first respondent at Sadar Nala Road on 15th February1971 is, however, not well founded. There is no evidence at all to showthat this public meeting was held. The only piece of evidence OP. whicHthe petitioner could rely was the intimation Ex. PW 6/2 given by theSuperintendent of Police, North District, Delhi that the Congress had decid-ed to held a public meeting at Sadar Nala Road on 15th February, 1971and assistance should be provided, to the local police in maintaining lawand order. But from this piece of evidence alone, without anything more.it cannot be concluded that the public meeting referred to in this intima-tion was in fact held. Subhash Arya (RIW 35) stated in his evidence thata public meeting was undoubtedly scheduled to be held at Sadar Nala Roadon 15th February, 1971 but it had to be cancelled because no arrangementcould be made in regard to speakers. This statement of Subhash Aiya(RIW 35). stands uncontraverted by any positive evidence on behalf of thepetitioner in regard to the holding of this public meeting, unlike the casein regard to the public meeting at Pul Bangash on 26th February, 1971.We, therefore, reject the claim of the petitioner that any such public meet-ing was held at Sadar Nala Road on 15th February, 1971.

We have discussed the evidence in regard to the number of public meet-ings held in connection with the election of the first respondent in great

E.L.U.] KANWARLAL GUPTA V. AMAR NATH CHAWLA 2 9

detail because we are taking a view different from the one taken by thelearned Trial Judge and, in all fairness to the learned Trial Judge as wellas to the first respondent, we think it necessary that we should articulate ourreasons fully. The above discussion shows that! in addition to the twentythree public meetings admitted by the first respondent nine further publicmeetings were held at the following places and on the following dates,namely:

1. Amar Puri Colony on 26-2-1971.2. Chowk Azad Market on 26-2-1971.3. Chhoti Masjid, Bara Hindu Rao on 26-2-1971.4. Pahari Dhiraj on 27-2-1971.5. Chhe Tooti on 12-2-1971.6. Hathi Khana Bahadurgarh Road on 26-2-1971,7. Near Police Post. Nabi Karim on 26-2-1971.8. Muliani Dhanda on 22-2-1971.9. Pul Bangash on 26-2-1971.

The first respondent owned the responsibility for expenses in respect ofthe twenty three public meetings admitted by him and the only questioncould be in regard to the expenses of the additional nine meetings above-mentioned. It was not the case of the first respondent that any publicmeetings were held in connection with his election which were financedby the Congress or any other individual. The first respondent in fact ad-mitted in his cross-examination that he "bore the expenses of all the elec-tion meetings in my constituency". There can, therefore, be no scope forthe argument that the expenses of any of these nine public meetings weremet by any organisation or individual other than the first respondent. Inany event, even if the expenses of some out] of these nine public meetingswere incfirred by the District Pradesh Congress Committee or any otherbranch of the Congress Organisation or any other friend or supporter, suchexpenses must be held to be authorised by the first respondent, becausethe first respondent knowingly took advantage of such public meetings byparticipating in them and consented to or at any rate, acquiesced in suchexpenses and in any view of the matter, foiled to disavow them. The ques-tion which we must, therefore, proceed to consider is as to what were theexpenses incurred or authorised by the first respondent in connection withthose twenty three plus nine public meetings.

Now, the first respondent disclosed in his return of expenses only threeaccounts, namely Rs. 180, paid to Tandon Tent and Furniture House,Rs. 130 paid to Saini Electric Works and Rs. 140 paid to Agarwal TentHouse, and his case was that there were the only three amounts spent byhim in connection with his public meetings which were twenty three in num-ber. Since we have held that nine more public meetings were held in addi-tion to the twenty three admitted by the first respondent, it must! follow thatthe first respondent suppressed the expenditure incurred or authorised byhim on these nine further public meetings. What should be the approachof the Court when the Court finds that certain items of expenses are sup-pressed by a candidate is a matter which we shall presently discuss. Butbefore we do that, we must examine the question whether the expenditureshown by the first respondent in connection with twenty three public meet-ings admitted by him is genuine. Did the firsts respondent spend only threeamounts of Rs. 130, Rs. 180 and Rs. 140 in connection with these publicmeetings or these amounts represent a very much lower figure than what-was actually spent by the first respondent. The expenditure of these

3 0 KANWARLAL GUPTA V. AMAR NATH CI1AWLA [VOL. LVir

amounts was sought to be supported by the bill of Tandon Tent and Furni-ture House, the receipt of Saini Electric Works and the bill of Agarwal TentHouse. The case of the first respondent was that Furnishings in connec-tion with twelve public meetings were supplied by Tandon Tent and Furni-ture House and electric equipment by Saini Electric Works and Furnishingsand Electric Equipment in connection with the remaining eleven oublicmeetings were supplied by the Agarwal Tentj House. However, stronglyenough, when the first respondent was asked in cross-examination, he couldnot say as to which were the public meetings to which Tandon Tent & Furni-ture House and Saini Electric Works supplied furnishings and electric equip-ment and which were the public meetings to which furnishings and electricequipment were supplied by Agarwal Tent House. If in fact, Furnishingsand electric equipment were supplied by Tandon Tent and Furni-ture House. Saini Electric Works' and Agarwal Tent House, and thearrangements with these three firms had been made personally by the firs*respondent as claimed by him in his evidence, it is difficult to understandwhy the first respondent could not specify the public meetings catered byTandon Tent & Furniture House and Saini Electric Works and the publicmeetings catered by Agarwal Tent House. Surely, the first respondent musthave maintained some records to show to which public meetings, furnishing?,and electric equipment were supplied by these three firms; otherwise, howcould he have checked whether Ijhe bills submitted by these three firmswere correct. The inability to produce the records and to particularise thespecific public meetings catered by these three firms is a factor which throwsconsiderable doubt on the genuineness of the story of the first respondentthat furnishings and electric" equipment were supplied by these three firms,Tt is also rather strange that the first respondent could not; give particularsof the furnishing and' electric equipment actually supplied by these fhresfirms.

Tt may also be noted that the bill of Tandon Tent & Furniture Housewas sought to be proved by the first respondent by examining BbagmatTandon (RIW 14), the sole proprietor of the firm as a witness. But sofar as the receipt of Saini Electric Works and the bill of Agarwal TentHouse were concerned, the first respondent did not call any representativesof these two firms to give evidence and prove the contents of these docu-ments. Since tlhe correctness and genuineness of these documents waschallenged on behalf Of the petitioner, the first respondent ought to havesummoned the representatives of these two firms and led their evidencefor the purpose of establishing that in fact they supplied furnishings andelectric equipment and charged no more than the amounts shown in thesedocuments.. The first respondent, however, did not choose to do so andpreferred to rest his case merely on his oral testimony which was so vagueand evasive as not to give even the particulars of the specific public meet-ings at which furnishings and electric equipment were supplied by thedifferent firms. It may also be pointed out that so far as Saini Electricworks is concerned, not even the bill of this firm was attempted to be pro-duced by the first respondent. The receipt of this firm which was pro-duced from the records of the Chief Electrical Officer merely showed asum of Rs. 180 as having been received from the first respondent ^"onaccount of loudspeaker and light arrangements for the period from 20thFebruary, 1971 to 2nd March, 1971". It did not show where "loud-speakers and light arrangements" were supplied, what was the numberof public meetings at which the supply was made, how many loudspeakerswere supplied and what was the nature and extent of the lighting arrange-ments made at each public meeting. The rate at which "loudspeaker andtight arrangements" were supplied was also not mentioned in the receipt

E.L.R.] KANWARLAL GUPTA V. AMAR MATH CHAWLA 31

The receipt also did not refer to supply of microphones and, therefore,presumably, microphones were not supplied by Saini Electric Works andthe amount of Rs. 180 did not cover any charges on that account.

The evidence of Subhash Arya (RIW 35) also exposes the infirmitiesin the case of the first respondent on this point. Subhash Arya (RIW 35)in his evidence made a distinction between big public meetings and smallpublic meetings and state that "for big public meetings respondent No 1had instructed him to place an order with Tandon Tent House to supplyfurniture etc. other than electricity. Electricity material was supplied bySami Electrical Works. For smaller public meetings the furniture etcused to be supplied by Agarwal Tent House". There were, according tothis witness, twelve big public meetings and eight out of these big publicmeetings were held at Clock Tower, Bara Tooti, Chowk Neem Wala, TelMandi, Che Tooti, Chuna Mandi Kasabpura and Deputy Ganj, and theremaining four, in Pahar Ganj. It is clear from the particulars of thetwenty three public meetings admitted by the first respondent that outof the aforesaid eight big public meetings referred to by this witness, threewere held prior to 20th February, 1971 one at Clock Tower on 16th Febru-ary, 1971, the other at Tel Mandi, on 19th February, 1971 and the thirdat Kasabpura on 13th February, 1971. Now, if furnishings at big publicmeetings were supplied by Tandon Tent & Furniture House, as claimedby Subhash Arya (RIW 35), it must follow that furnishings at these threebig public meetings held at Clock Tower, Tel Mandi and Kasabpura priorto 20th February, 1971 must also have been supplied by Tandon Tent &Furniture House. But the bill of Tandon Tent and Furniture Houseshows that furnishings were supplied only at "12 public meetings held inihe month 20-2-71 to 2-3-71" and no furnishings were supplied at anypublic meetings hsld prior to 20th February 1971. If that be so. TandonTent & Furniture House could not possibly have supplied furnishings atthe three big public meetings held at Clock Tower, Tel Mandi and Kasab-pura piior to 2Qth February, 1971. This casts grave doub; on the case

. of the first respondent that furnishings were supplied by Tandon Tent &Furniture House at twelve public meetings held by the first respondent andirresistibly leads to the conclusion that the bill of Tandon Tent & Furni-ture House, is, to say the least, highly suspicious. The case of the firstrespondent in regard to furnishings and electrical equipment supplied byAgarwal Tent House also suffers from the same infirmity, Agarwal TentHouse, according to Subhash Arya (RIW 35), supplied furnishings andelectrical equipment at smaller public meetings. The public meetings at'P' Block, Andha Mughal on 1st March, 1971 was admittedly a small-public meeting and therefore, if the case of the first respondent were true,furnishings arid electrical equipment at this public meeting should havebeen supplied by Agarwal Tent House. But the bill of Agarwal TentHouse showed that furnishings and electrical equipment were suppliedby that firm only at eleven public meetings held in the month of February1971. It is, therefore, obvious that according to this bill, furnishings andelectric equipment could not have been supplied by Agarwal Tent Houseat his public meeting held on 1st March, 1971. The bill of Agarwal TentHouse thus does not fit in with the evidence and it is difficult to acceptit as genuine. The only way in which the first respondent tried to getout of this rather difficult situation was by saying that the distinction madeby" Subhash Arya (RIW 35) between big meetings and small meetings wasa distinction without a difference made under some misapprehension andthis explanation appealed to the learned Trial Judge. But it is difficuito see how one could explain awav this distinction in such a casualmanner wh?n Subhash Arya (RIW 35) put forward this distinction


deliberately and advisedly as part of the case of the iirst respondentand there was nothing in this evidence to suggest that it was made underany misapprehension.

Then again, it may be noted that the bill ot Agarwal Tent Housereferred to two public meetings, one at Gulabi Bagh and the other atSadar Bazar and charged for furnishings and electric equipment said to.have been supplied at these two public meetings. The first respondent,however, denied that any public meeting was held by him at Sadar Bazarand in the absence of any positive evidence to the contrary, we must acceptthis denial as correct. So far as the public meeting alleged to have beenheld at Gulabi Bagh is concerned, the first respondent at one place in his evi-dence disclaimed any knowledge as to where Gulabi Bagh was situate,but subsequently, in the course of his cross-examination, he unwritinglyblurted out that Gulabi Bagh was at a distance of two or two and a halfmiles from the shop of Agarwal Tent House, which means that he knewwhere Gulabi Bagh was. Now, according to the list of twenty three publicmeetings given by the first respondent, there was no public meeting atGulabi Bagh and yet the bill of Agarwal Tent House referred to a publicmeeting at Gulabi Bagh. The first respondent was, therefore, constrainedto put forward a rather ingenious explanation in the course of argumentsthat Gulabi Bagh was in the area known as Aridha Mughal and the refer-ence in the bill of Agarwal Tent House, was, therefore, to the public meet-ing in Andha Mughal. But this explanation is palpably incorrect, becausethe only two public meetings out of thos<; admitted by the first respondentwhich took place in Andha Mughal were at 'P' Block, Andha Mughaland 'K' Block. Andha Mughal, and Gulabi Bagh, Andha Mughal isclearly and indisputably a different area from 'P' Block or 'K' Block,iAndha Mughal. There was, therefore, no public meeting of the firstrespondent held at Gulabi Bagh. The bill of Agarwal Tent House whichrefers to the public meetings at Gulabi Bagh and Sadar Bazar cannot, inthe circumstances. Be looked upon as a document inspiring confidence andno reliance can be placed upon it.

There was also certain other infirmities which stare us in the faceif we examine the matter a little more closely. The bill of Agarwal TentHouse showed a lump sum of Rs. 100 for cartage charges and a lump sum ofRs. 40 for labour charges in respect of furnishings and electrical equipmentsupplied at eleven public meetings held by the first respondent. Thatwould mean that an aggregate sum of Rs. 300 was charged by AgarwalTent House to the first respondent by way of hire for furnishings andelectrical equipment and the rate of hire thus came to about Rs. 27 perpublic meeting. So far as the bill of Tandon Tent and Furniture Houseis concerned, it did not make any separate mention of cartage or labourcharges in respect of furnishing supplied at twelve public meetings of thefirst respondent. The explanation of the first respondent as well as Bhag-mal Tandon (RIW 14), the sole proprietor of this firm, was that the rateof Rs. 15 per public meeting mentioned in this bill was inclusive of cartageand labour charges and that is why these charges were not separatelyshown as ip the bill of Agarwal Tent House. Obviously, some such expla-nation had to be. given by the first respondent, because no separate amountin respect of cartage and labour charges was shown by him in his return••>f expenses. But that exposes completely the dubious character of thebill of Tandon Tent & Furniture House. The cartage and labour charges,according to the bill of Agarwal Tent House, were Rs. 13 per meeting. Wewill assume in favour of the first respondent that the cartage and labour

E.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWI.A 33.

charges in respect of furnishings supplied by Tandon Tent & FurnitureHouse and the electric equipment supplied by Saini Electrical Works werethe same, namely, Rs. 13 per public meeting even though the furnishingssupplied by Tandon Tent & Furniture House were in much greater quantitythan those supplied by Agarwal Tent House. But even on that minimalfooling, the aggregate charges by way of hire for furnishings supplied byTandon Tent & Furniture House and Electric equipment supplied bySaini Electric Works would come to Rs. 17 per public meeting. It is notstrange and also most incredible that the hire charges for furnishings andelectrical equipment supplied by Agarwal Tent House at small publicmeetings should be Rs. 27 per public meeting while the hire charges forfurnishing supplied by Tandon Tent & Furniture House and the electricalequipment supplied by Saini Electric Works at big public meetings shouldbe only Rs. 17 per public meeting. The furnishing supplied by TandonTent & Furniture House were admittedly much more in quantity thanthose supplied by Agarwal Tent House and, therefore, the hire charges ofTandan Tent & Furniture House and Saini Electric Works should havebeen higher than those of Agarwal Tent House. But strangely enoughthey were lower by about Rs. 10 per public meeting. It would be strain-ing" out credibility to the utmost to accept this fantastic theory.

We may also point out that it is rather strange that the first respon-dent should have entered into arrangements with Tandon Tent & Furni-ture House and Agarwal Tent House to supply fixed items of furnishings,irrespective of the nature of size of the items of furnishings required ata public meeting not depend on the place or locality in which the publicmeeting is to be held whether the audience expected would be large orsmall? This is of course not a circumstance on which we place muchreliance but it cannot be said to be wholly without significance. Thenagain it may be noted that the rate of about Rs. 27 per public meetingby way of hire for furnishings and electric equipment supplied by Agar-wal Tent House as also the rate of Rs. 15 per public meeting for furnish-ings supplied by Tandon Tent & Furniture House and the rate of Rs. 15per public meeting for electrical equipment supplied by Saini ElectricWorks both the latter rates being inclusive of labour and cartage chargesare absurdly low and can hardly be regarded as genuine. It was not thecase of the first respondent that the rates .charged by these three firmswere concessional rates. In fact Bhagmal Tandon (RIW 14), who is thetproprietor of Tandon Tent & Furniture House, stated in his evidence thatthe rates charged by him from the first respondent were the usual marketrates. If we look at the bills Exs, 15/1-A. PW 15/1-B, and PW 15/1-Cproduced by Pramnd "Kumar (PW 15), it is clear that the market ratesparticularly for tne supply of electrical equipment were very much higherthan those shown to have been charged by these three firms.

We may then examine the evidence of Bhagmal Tandon (RIW 14),who came as a witness on behalf of the first respondent. He stated in hisevidence that he did not receive any order from the first respondent tosupply furnishings during the electibn but it was Subhash Arya (RIW _ 35)who placed orders with him "to arrange for furniture for election meetingsof respondent No. 1". He deposed that the "bill in respect of furnishingsupplied by him was submitted by him to the first respondent and hereceived payment of the amount of the bill against the receipt Ex. W-8.He was severely cross-examined on behalf of the petitioner and in hiscross-examination, he admitted that even during the previous electionshe Haa worked for the first respondent who had stood as a candidate ocbehalf of the Congress. He stated that he maintained only a bill book,

3 4 KANWARLAL GUPTA v. AMAR NATH CHAWLA [VOL. LV1[

a ledger and a cash book and he produced these books of account in CourtThe bill book contained the carbon copies of the bill issued by the wit'ness during the period 6th February, 1971 to 21st March, 1971 The billfor the furnishings supplied to the first respondent bore the number 8170and a carbon copy of it found a place in the bill book. TbJs bill wasfor Rs. 100 and it was dated 4th March, 1971. These were carbon coorsof bill Nos. 8i67, 8168 and 8169 in the biil book which ail bore the date4th March, 1971. The aggregate amount of these four bills n-onely "B;flNos. 8167. 8168, 8169 and 8170, come to Rs. 189.75 and this aggregateamount appeared to have been carried to the cash book and entered "onthe credit side under the date 4th March, 1971 at. page 93 of the cash book.The particulars of this entry in the cash book showed that the amountof Rs. 189.75 was credited as representing cash received in respect of billNos. 8167 to 8170. This amount of Rs. 189.75 was then carried to theledger at page 15 and credited in the account headed "Cash hire in resoectof Goods" under the date 4th March, 1971. Now if these entries in'thecash book and the ledger are genuine, they would go a long way to sup-port the genuineness of the Bill No. 8170 said to have been submitted byTandon Tent & Furniture House to the first respondent. But, w e d0 n o tthink we can, with any degree of confidence, place reliance on theseentries. It is well known in book-keeping that it is the cash book whichis the primary book and the ledger is only a subsidiary book which isalways prepared from the cash book at periodic intervals. We mast,therefore, first examine whether the entry of Rs. 189.75 in the cash bookcan be regarded as genuine. This entry in the cash book shows that theamount of Rs. 189.75 was received in cash on 4th March, 1971 in respectof bill Nos. 8167 to 8170. That would mean that the amount of Rs 1.30in respect of bill No. 8170, was received by Tandon Tent & FurnitureHouse from the first respondent in cash on 4th March, 1971. But. If welook at the original bill No. 8170 we find an endorsement at the foot ofthat bill showing that the amount of that bill, namely, Rs. 180 was;paid to Tandon Tent & Furniture House on 7th April, 1971. That is ai*oborne out by the receipt R-8 dated 7th April, 1971 said to have been pass-ed by Bhagmal Tandon (RIW 14) on behalf of Tandon Tent & FurnitureHouse in favour of the first respondent. But, if the amount, of the billwas paid by the first respondent to Tandon Tent & Furniture House on7th April, 1971, it is difficult to see. how it could be shown in. the cashbook as having been received 'on 4th March, 1971. In fact, if we look atthe cash book, it is apparent, even to the naked eye, that the whole of Itseems to have been written out in the same ink at one and the same time.We have in the course of our experience yet to come across a genuinecash book written with such neatness, uniformly with the same pen and in.the same shade of ink over a hundred pages. We cannot place any relianceon the entry of Rs. 189.75 under date 4th March, 1971 at page 93 of thecash book and the corresponding entry at page 15 of the ledger must alsolikewise be regarded as unreliable. It is no doubt true that the bill bookproduced by Bhagmal Tandon (RIW 14> contained a carbon copy of billNo. 8170 alleged to have been issued by Tandon Tent & Furniture House tothe first respondent. But we are not at all satisfied about the genuinenessof this bill We have already set out some of the reasons why we find idifficult to accept this bill as genuine. We may add two or three more rea-sons for taking this view. In the first place, if we look at the bill bock,it is evident that this is the only bill which has been made out m English.The rest of the bills are also in Urdu. Secondly, it is apparent from mereceipt Ex R-8 and this Bhagmal Tandon (RIW 14) was forced to admitin cross-examination that the bill number originally written in that receiptwas different and it was struck off and in its place bill No. S170 was


mentioned. That raises a certain amount of suspicion as to the genuinenessof bill No. 8170. Then again it is rather strange that Bhagmal Tandon(RIW 14) should have no record in his possession to show which were thepublic meetings at which furnishings were supplied by his firm and whatwere the dates on which such public meetings were held. It is also sur-prising that bill No. 8170 submitted by him to the first respondent shouldnot mention the dates and places of the public meetings at which furnishingswere supplied by his firm. Bhagmal Tandon {RIW 14) could not evenstate from memory as to which were the places at which the public meetingscatered by his firm were held. He said in his evidence quite unwittinglythat he used to receive chits or telephone calls "containing requirementsfor the election meetings of respondent No. 1". But immediately realisingthat he had slipped into a rather inconvenient statement, he corrected him-self by saying that the chits which were received merely indicated the placsswhere the material had to be supplied and it had already been agreed as towhat he was supposed to supply at each public meeting. When asked toproduce these chits, he stated that they had not been retained by him andwere destroyed as soon as the final account was made up on 4th March,1971. It may be noted that the version of Om Parkash'Maken (RIW I)in this connection was a little different. He did not support the story ofchits, but stated that "our volunteers used to go and specify the require-ment for each meeting". Then Bhagmal Tandon (RIW 14) was questionedwhether any receipts were obtained evidencing delivery of the furnishingsto the representatives of the first respondent. He first blundered into thestatement that he maintained copies but immediaiely resiled from it bylaying that he maintained a bound book of printed forms and every timethat a theiewala went to deliver furnishings at a public meeting, he wouldtear off a printed form from his bound book and give it to the theiewalato obtain the signature of the person who received the furnishings and thetheiewala would bring back that printed form duly signed by such person.No copies of these printed forms of receipt were, however maintained byhim and the originals were torn off by him after the account was settled withthe first respondent on 4th March, 1971. He was then cross-examined withregard to payment of cartage, charges 'to the thelewalas. He staled that heused to pay the thelewalas at the rate of Re. 1 or Rs. 1.50 for each one waytrip and thus, according to him, the cartage charges came to about Rs. 3per each return trip. Since the cartage charges of Rs. 3 per each returntrip %vould be a legitimate business expenditure incurred by him which hewould be entitled to claim by way of deduction in his income tax assess-ment, he wa$ asked whether it was recorded in his account books. But hewas not in a position to show afiy entries in the account books relating topayment of the cartage charges and he was, therefore, constrained to saythat he used to make this payment from his pocket & did not record it anywhere in his books. This is an explanation which is difficult to swallow.No business man would fail to show in his account books expenditure in-curred by him in the course of his business which he can claim a; a deduc-tion in his income tax assessment. We are, therefore, not at all satisfiedthat furnishings were supplied by Tandon Tent & Furniture House as claim-ed bv the first respondent and Bhagmal Tandon (RIW 14) and we cannotaccept bill No. 8170 alleged to have been submitted by the firm to the firstrespondent as genuine.

Since in the view taken by us, the bills of Tandon Tent & FurnitureHouse and Agarwal Tent House and the receipt of Saini Electric Works, donot appear to be genuine and they do not correctly showthe expenses in-curred by the first respondent in regard to the twenty three public meetingsadmitted by Mm, it becomes necessary for us to inquire what were the

3 6 KANWARLAL GUPTA V. AMAR NATH CHAVVLA [VOL. LVII

expenses actually incurred by the first respondent in connection with thetwenty three public meetings admitted by him as also nine further publicmeetings proved to have been held in support of his election. Now, except incase of two public meetings, one at Tel Mandi on 19th February, 1971 andthe other at Chuna Mandi on 22nd February, 1971, no evidence was led onbehalf of the petitioner to show the actual expenses incurred by the firstrespondent in regard to any of these public meetings. Indeed, the peti-tioner could not possibly lead any such evidence, because what expenseswere actually incurred would tie a matter within the special knowledge ofthe first respondent. But that does not mean that on the material on record,the Court cannot arrive at a reasonable estimate of the expenses incurred*by the first respondent. It is now well settled by the decision of this Courtin Magraj Patodia v. R. K. Birla, that "if the court comes in the conclu-sion that an item of expenditure has been suppressed in the return of elec-tion expenses, the mere fact that there is DO sufficient evidence about theamount that must have been spent is no ground for ignoring the matter. Itis the duty of the court to assess all expenses as best it can and though theytry to guess the amount that must have been spent, it would generally bepossible to arrive at an amount of expenditure of a conservative basis andwhere it is possible to arrive at any such estimate, such estimated amountshould be held as not shown by the candidate in his election account".See also P. C. Raddiar v. S. Perumal. (5) The court cannot fold its handsand surrender in helplessness because the respondent refuses to cooperateand assist and holds back the relevant information in his possession. TheCourt in such a case is not powerless to arrive at the truth as best as itcan. The Court can and must, as far as possible, assess the amount ofexpenditure on the basis of tEe material on record when it finds that thereis suppression of some items of expenditure or the items is deliberatelyshown as less than what must have actually been incurred. Here in thepresent case the first respondent has not only suppressed the items of ex-penditure on admitted twenty three public meetings are deliberately shownas a much lesser figure than what must have actually been incurred. Wemust, therefore, examine whether there is sufficient material before us onthe basis of which we can arrive at a reasonable estimate of the expenses in-curred by the first respondent in connection with the admitted twenty threepublic meetings and the further nine public meetings.

Now the material before us for estimating the expenditure which mustreasonably have been incurred by the first respondent in connection withhis public meetings is of two kinds : one consists of documentary evidencein the shape of "Exs. PW 15/1-A, 15/1-B and FW 15/1-C and theOther consists of oral evidence of witnesses. Since documentary evidencealways carries greater weight and assurance than oral evidence and it issafer to rest a conclusion on documentary evidence rather than oral evi-dence which may sometimes be treacherously deceptive and difficult or cor-rect evaluation, we would first examine the documentary evidence and seehow far it helps us to determine the expenditure incurred by the first respon-dent. The petitioner called in evidence Permed Kumar (PW 15) and thedocumentary evidence in the shape of Exs. PW 15/1-A, PW 15/1-B- andPW 15/1-C was produced by this witness. This witness stated in his evi-dence that he carried on business of hiring out furnishings and electricalequipment and in course of his business is "hired out durries. stage, loud-speakers etc. to respondent No. 1 during the election period". He produc-ed from his bill'book carbon copies of three bills in respect of furnishings

f3) (1971) 2 S.C.R. 118.(5) (1972) 2 S.C.R. 646

.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWLA & OTHERS 37

and electrical equipment hired out by him to the first respondent One wasbill No. 263 dated the 20th February 1971 for Rs. 368, the other was b;liNo. 270 dated the 24th February 1971 for Rs. 414.50 and the third was billNo. 2/1 dated the 24th February, 1971 for Rs. 360. He said that one ortwo days before the date of the first bill, the first respondent had cometo him accompanied by Sat Prakash Maken and one other person whosename lie did not remember and placed an order with him "v, Jh iespectto all the three bills" and the furnishings and eledric equipment me oiisain thess tfcuee bills were supplied by him according to the o d~ , cdby the first respondent and the payment of the amounts of the e 'h> ' L< 1was made to him personally by the first respondent. The cop e ol U~J3three bills were marked Exs. PW 15/1-A, PW 15/1-B and V \ l-C.The first respondent challenged "the genuineness of these thiee b i l , \vAthe learned Trial Judge felt serious doubt about the authenticity of these.three bills and declined to act upon them. We do not think the learnedTrial Judge was right in casting doubt on the genuineness of these three bills.There is absolutely no reason why these three bills should bs regarded asunworthy of credibility. Perrocd Kumar (PW 15) who produced and provedthese three bills is a completely independent witness who has no interest inone side or the other. It was faintly suggested to him in cross-examina'ionthat he was a member of a Jan Sangh and he worked for Jan Sangh candi-dates in the election but this suggestion was stoutly denied by him and infact there is nothing to show that he was in any way interested in the- JanSansh. It was then put to him that he was a partner of one PadamrhandGoel who was a member of the Delhi Municipal Corporation on Jan Sanghtkke:. He admitted that there was a partnership between him and Padam-chand Goel entered into in 1966 but that partnership was dissolved withinthree or four months after Padamchand Goel became a member of the DelhiMunicipal Corporation. It does not follow merely because an erstwhilepartner of this witness was a member of the Jan Sangh. that he too shouldbe having interest in the Jan Sangh. It would be too much to presume thata person without any political affiliation cannot have any business relation-ship with a member of a political party, and if there is any business re^rion-shtp, it must be presumed that both belong to the same political party.In fact we find from the carbon copies of bill Nos. 296 and 297 in the billbook Ex. PW 15/1 that this witness supplied material on hire even ro theYouth Concress which is avowedly a Congress organisation. There is ab-solutely no reason suggested why this witness should have gone to the lengthof fabricating false documents for the purpose of supporting the case of thepetitioner. The carbon copies of the bills Ex. PW 15/1-A, PW 15/1-B andPW 15/l-C find place in their proper serial order in a bound bill bookand it is indeed difficult to appreciate how they could be subsequently intro-duced in the bill-book unless of course the suggestion be that the whole ofthe bill-book was fabricated for the purpose of this case. _ This was, how-ever, not the suggestion made to the witness in cross-examination. In anyevent we have carefully gone through the whole of the bill-book which ismarked Ex. PW 15/1 and we do not find any indication in it which raiffhtbetray that it is a subsequently got up bill book. Even the bill-book forthe immediafelv preceding period was produced by this witness and it ismarked Ex, PW 15/2. That Bill-book contains carbon copies of bills com-mencing from No. 201 and ending with No. 250 and the bUl-book Ex. PW15/1 starts from carbon copy of bill 251 and ends with carbon copy of billNo. 300. The carbon copies of the bills in both these bill-books appearto be quite natural and regular and no valid reason has be<m suggested asto whv we should regard them with suspicion. It is no doubt true that \Xwas elicited in the cross-examination of this witness that he did not maintainany cash-book or ledger or any other account book but that is not such an


38 KANWARLAL GUPTA V. AMAR NATH CHAWLA & OTHERS [VOL. LVII

unusual circumstances as to lead us to believe that the carbon copies of thebills produced by him were not genuine. It is not all improbable that theonly record which the witness maintained was the bill-book because bythe very nature of his business, the bill-book would contain a complete re-cord of the amount of hire received by him. The carbon copies of the billsnot only show the names of the parties to whom materials are given on hirebut also the dates and the particulars of the items and the hire charges inrespect of the same. The witness ako admitted in cross examination thathe did cot maintain any receipt book but that is also not at all unusual.One does not need to have a regular receipt book. A receipt can always begiven on the bill submitted 10 the customer. Then some minor discrepan-cies were sought to be shown in the carbon copies of one or two other billsin the bill book. One was in respect of bill No. 256. It \va.; pointed outto the witness that bil! Nor. 254 and 255 bore date' 15th February. 1971,while bill No. 256 bore date 14th February, 1971 and he was asked hovv alater bill could bear an earlier date than the earlier bills. The witnesspointed out that that was an obvious mistake and there is no doubt thatit was so. It is apparent from the carbon copies of bill Nos. 254, 255 and256 that bill No. 256 was in continuation of bill Nos. 254 and 255, iorm-ing part of one single bill was in continuation of bill Nos. 254 and 255,forming part of one single bill in the name of K. K. Bajan. and sir.ee thelater two bills bore date 15th February, 1971, the former should also havebeen dated 15th February, 1971, but through some obvious error the datecame to be mentioned as 14th February, 1971. No point can be madeoi' this obvious mistake. Then the attention of the witness was drawn tosome bills in the bill-books PW 15/1 and PW 15/2 which were shown ascancelled, and there was some cross-examination of the witness of the point.But we fail to see how this circumstance is of any help to the first respon-dent. It is clear from the bill-books Exs. PW 15/1 and PW 15/2 that when-ever a bill was cancelled, the original as well as the carbon copy were mark-ed "cancelled" or crossed out. Now, there is nothing unusual in cancellinga bill if it is found that there is some mistake made while writing i out.This happens sometime even to the most careful of men and is not a cir-cumstance which should be regarded in any manner as suspicious. Theimportant thing is that the originals as well as the carbon copies of thecancelled bills are retained in the bill-books. That would show the regularmanner in which the bill books, are maintained by the witness. There areno blank bills in the bill-books PW 15/1 and PW 15/2 which could havebeen utilised subsequently for the purpose of fabricating a bill as of anearlier date. The suggestion made in the cross-examination of course wasthat there were blank bills in the bill-book PW 15/1 and these were utilisedfor the purpose of making out false bills in the name of the first respondent.But this suggestion is wholly unwarranted and is not supported by anythingin the bill-book PW 15/1 or PW 15/2. There are only three cancelledbills in the bill-book PW 15/1. They are bill Nos. 253. 269 and 295. Ttwill be seen that none of these three bills is blank. Each one of them hasbeen made out in the name of some party or the other and then it has beencancelled. The same position obtains in regard to bill Nos. 207, 208 and?29 in bill-book PW 15/2. It is apparent in the case of some these billsthat they were cancelled because of some mistake and then new bill- weremode out in the names of the same parties. Compare, for exampK can-celled bill No. 229 with bill No. 231, cancelled bill No. 208 with bill N - 209and cancelled bill No. 253 with bill No. 254. There is no_ reason whv ;>nvblank unutilised bills should have been allowed to remain in the bill-books.That is not done by people who maintain the accounts in the regular courseof business. Permod Kumar (PW 15) could not have anticipated on 20thFeVuary. 1971 that some blank bills might come in handy at a future point


of time and he should, therefore, leave some blank bills in the bill-books.It is also difficult to believe that there should have been a blank bill No. 263and again three continuous blank bills at Nos. 269, 270 and 271. We findit impossible to accept this theory of fabrication of bills Exs. PW 15/1-A,PW 15/1-B and PW 15/1-C by utilising blank bills in the bill-book Ex.PW 15/1. Moreover, there is inherent, evidence in these bills which indi-cates their genuineness. The charge for a complete stage of 12' X 10' sizeand 5' height with chaddar: durries and carpets is shown in the bill Ex.PW 15/1-A as Rs. 40 per day. That appears to be quite rea-sonable compared to the ridiculously low figures given in thebills of Tar-don Tent & Furniture House and Agarwal Tent House.Similarly, the charge for one "loudspeaker service with five units anddouble or Ice with standby battery arrangements" is shown in the bill Ex.PW 15 1-A as Rs. 90 and for one loudspeaker service with eight unitsand double nr'ke with sfandby battery arrangements .is shown in the billEx. PW 15/1-B as Rs. 120, while according to the bills of Agarwal TentHouse and the receipt of Saini Electric Works, it would be only aboutRs. 6 because out of Rs. 15 shown by them, a minimum amount of Rs. 3to Rs. 4 would be taken up by cartage and labour charges and the hireof four flood lights at the rate of Rs. 160 per flood light would come toRs. 6. It is possible to believe that in the year 1971 two microphones—even one, we may assume, with five loudspeakers and standby batteryarrangements coupled with the services of an attendant to lookafter theunit could be available for Rs. 6 for a period of about four hours in thecity of Delhi ? It is an insult to our intelligence to be told that the) chargewould be something as low Rs. 6 or for the matter of that, even Rs. 5.Then apam. it may be noticed that the bills Ex. PW 15/1-A and PW 15/1-Bwere in respect of hire charges for the material supplied at the publicmeetings at Te! Mand? on 19th February, 1971 and Chuna Mandi on22nd February, 1971. Both these public meetings were big public meetingswhich, according to the evidence, were attended by more than 2000 peopleand it is, therefore, quite reasonable to assume that a large number ofdurries must have been required at each of these two public meetings asmentioned in the bills Exs. PW 15/1-A and PW 15 1-B. The bill Ex. PW15/1-C showing hire charges for sets of battery operated loudspeakers forannouncing on scooter for two days is also quite natural because it is inevidence that announcements of public meetings were made from scootersand batterv operated loudspeakers must have been utilised for the purpose,It is si.snificant that the first respondent has not shown hiring of batteryoperated loudspeakers, from any other party. We are, therefore, satisfiedbeyond doubt that the three bills Exs. PW 15/1-A, PW 15/1-B, and incurredbv the first respondent.

Now the bills Exs. PW 15/1-A and PW T5/1-B serve two purposes.They not only show the actual expenses incurred by the first respondentin connection with the public meetings at Tel Mandi on 18th February,1971 and Chuna Mandi on 22nd February, 1971, but also provide reliablematerial for making a reasonable estimate of the expenses which musthave been incurred by the first respondent in connection with other publicmeetings. The actual expense in connection with the public meeting atTel Mandi on 22nd February, 1971 it was Rs. 400 as appearing fromEx. PW 15/1-B. We may err on the side of conservation and take thelesser of these two figures, namely Rs. 350, as a basis for making areasonable estimate of the expenditure in connection with other publicmeetings. This would mean that there must have been expenditure ofabout Rs. 350 per public meeting in connection with public meetings of


the type which were held at Tel Mandi on 19th February, 1971 andChima Mandi on 22nd February, 1971. These were obviously, biggermeetings and for the smaller ones, the expenditure would be some whatless and we may reasonably estimate it at Rs. 150 per public meeting ona most conservative basis.

This estimation is amply supported by the oral evidence in the case.We do not purpose to refer to the evidence of all the witnesses examinedon behalf of the petitioner on this point, because a large number of themwere opsn'y and avowedly supporters of Jan Saigh and it would not besafe to reply on their uncorroborated testimony for the purpose of foundinga charge of corrupt practice against the first respondent. But there are afew witnesses whose evidence inspires confidence and we shall discusstheir ev;dence. The first witness we must refer in this connection isChuni Lai (PW 32). Ke was himself a candidate at the election sponsoredby Congress (O) and figured as respondent Mo. 3 in the petition. We havegone through IT'S evidence carefully and critically and he has impressedus as a witness of truth. It may be noted that though he was a candidateat the election, lie was not interested either in the Jan Sangh or in theCori'.ress. Being a member of Congress he was opposed both to theCongress and the Jan Sangh. The evidence he gave was quite restrainedand he did not indulge in any exaggerated statements. His frankness andguidelessnsss are evident from his admission in cross-examination that hewas "fond of contesting election for parliament, corporation or metro-politan council". His pathetic statement that all h:s workers abandonedhim "on the eve of the day of polling" is also quite eloquent of his sincerityand truthfulness. He stated in his evidence that the public meetings heldby t"ie Congress were "Shandar". There used to be stage covered withdurres and chandinis, loudspeakers, carpets and ligh's. The stage wasmade attractive to attract the people. He frankly admitted that Jan Sangh,meet'ngs had also the same furnishings and electrical equipment stated thatJan Sangh meetings were not so "Shandar" as the Congress meetings. Hethen deposed to public meeting held by him in Eara Hindu Rao. He:stated that this public meeting held by him was very small but even then,it cost h\m between Rs. 150 and Rs. 200. We are inclined to accept thispvjcterice as it appears to us to have a ring of truth. Now, there can beno doubt that if a small public meeting held by Chuni Lai (PW 32) costhim Rs. 150 to Rs. 200. a much more 'Shandar' public meeting held bythe Congress would certainly cost anything more than Rs. 200. Theestimate of Rs. 150 per public meeting can, therefore', safely be regardedas a reasonable estimate.

We may also refer to the evidence of Dharamvir (PW 56). This

_ emphaticallya worker nor a member of the Jan Sangh. It was suggested to him thathis brother Jagdish was a Secretary of a Mandal of Jan Sangh to wlrchhe replied that" to his knowledge, at any rate, during the last six or sevenyears,' his brother Jagdish had not been a Secretary of any Jan SanghMandal. He was also questioned about the political affiliation of hisbrother Jagdish and his answer was that he did not know whether his brotherJagdish was a member of Jan Sangh. There is nothing to show that thiswitness had any interest in Jan Sangh or that he belonged to the politicalpersuation of Jan Sangh. His evidence cannot, therefore, be assailed onthe ground that he was an interested witness. Now this witness earnedon business of hiring Shamyanas, furniture and marriage accessories. He


stated that he attended a public meeting of the first respondent at BaraTooti Chowk on 22nd February, 1971 the date 22nd January, 1971 givenby him being an obvious mistake and at this public meeting, he saw astage; big enough to accommodate 25 to 30 persons, covered by durries,chandinis and 2 or 3 carpets, 200 durries for people to sit, two or threemicrophones, seven or eight loudspeakers and about 30 or 35 big floodlights. The stage, according to him. must have been made of 24 or 30takhats and there were three tiers, one above the other, in which thesetakhats were arranged. He then proceeded to give the rates of durries,carpets, chandinis, takhats, microphones and flood lights. He stated thatthe normal charges were Re. 1 per takhat of the size of 6'X3'X 1-3/4'.Rs. 2 per chandini of the size of 12'X 9' Rs. 4 per carpet of the size of6'X9' 75 paise per durry of the size of 12'X 9' Rs. 1.50 to Rs. 2 for eachflood light and Rs. 60 or Rs. 70 for the type of mike which he saw atthis public meeting. He was cross-examined at length both in regard tothe furnishings which he saw at this public meeting as also in regard tothe rates deposed to by him, but his evidence could not be shaken in cross-examination. He of course frankly admitted that the rates he had givenwere of medium class goods which he kept in his shop and the rates ofthird class goods could be lower than those stated by him. But when hewas shown the bill of Tandem Tent & Furniture House, he opined in nouncertain terms that the rates charged in that bill were low, though it.was always open to a dealer to charge less if he so wanted. It may,however, be remembered in this connection that the evidence of BhagmalTandon (RIW 14) was "that the rates charged by him were normal marketrates. There can, therefore, be no doubt that the charges shown in thebill of Tandon Tent & Furniture House were not genuine charges but weredeliberately deflated to suit the convenience of the first respondent. Itmay also be noted that the charge of Rs. 60 or Rs. 70 for the microphonesdeposed to by this witness was not at all challenged on behalf of the firstrespondent in cross-examination nor was the charge of Rs. 1.50 or Rs. 2for each flood light. It is, therefore, apparent from the evidence of thiswitness that the expenditure in connection with the public meeting at BaraTooti Chowk on 22nd February, 1971 could not havei been less thanRs. 250 and that justifies the reasonable estimate of Rs. 150 per publicmeeting.

We may also refer to the evidence of O. P. Bharti (RIW 23) in thisconnection. This witness was summoned on behalf of the first respondentand his evidence, therefore, assumes some importance. He was questionedin cross-examination in regard to what he saw at the public meeting of thefirst respondent at Bara Tooti Chowk which he attended. He stated thatin this public meeting there was a stage 20' in length, 10' in width and5' in height. The stage was covered by durries and chaddars. There weretwo microphones. There were durries on the ground in front of the stage.There were four or five flood lights on the sitage and there were electricbulbs hung at three or four poles. Now. in order to makes a stage of thesize deposed to by this witness, it would be necessary to have at least 30takhats of the size 6' x 3' X 1-3/4' and that would cost not less than Rs. 30.Ths cost of two microphones with loudspeakers would easily be in theneighbourhood of Rs. 80 or Rs. 90. Then the flood lights and electric bulbswould also cost at least Rs. 15 even on the basis that there were only 4 or5 floodlights and electric bulbs hanging at only 3 or 4 poles, which appearsto us to be quite clearly an underestimate. There would also be expensein connection with durrieis and Chaddars. It is true that according to thiswitness, the durries in front of the stage would be at the most 20 or 25but we are not inclined to accept this statement, because in a public meeting


where there are more than 2000 people, there must be many more durri»sthan merely 20 or 25. In fact, Daulat Ram (PW 42) who was a SubInspector from the CID Special Branch, clearly stated that "there w-re aconsiderable number of durries" in the meeting at Chcwk Bara TootiThe expense in this connection cannot b« less than Rs. 25 to Us. 30. Andadded to this would be cartage and labour charges which we may put atnoteless than Rs. 13. That would easily take the as-gregnte expenditurewell above Rs. 150 even on a most minimal basis. We do not therefore,thJnk that we! would be unjustified in accepting a conservative estimate ofRs. 150 per public meeting.

We, therefore, hold that the petitioner has established that the firstrespondent incurred expenditure of Rs. 350 on the public meeting at TelMandi on 19th February, 1971, Rs. 400 on the public meeting at CliunaMandi on 22nd February, 1971 and Rs. 350 for two sets of battery operatedloudspeakers for announcement on scooteV. So far as the other thirtypublic meetings in connection with the election of the first respondent areconcerned, we1 think that on a very conservative estimate, the first respon-dent must be held to have incurred expenditure of Rs. 150 per publicmeeting and that would make a total expenditure of Rs. 4,500 in connec-tion with these thirty public meetings. The aggregate expenditure incurredor authorised by the first respondent in connection with the total numberof thirty two public meetings must, therefore, add up to Rs. 5,600. Butthe first respondent showed only an aggregate expenditure of Rs. 4.800 onthese thirty two public meetings held in connection with his election.

That takes us to a consideration of the public meeting at Idgah Roadwhich was addressed by the Prime Minister. So far as this public meetingis concerned, the evidence on record is not sufficient to establish that theexpenses in connection with it were incurred or authorised by the firstrespondent. There is no reliable evidence on behalf of ihe petitioner toshow that this public meeting was held by the firs: respondent or that itwas a pabiic meeting held specifically in connection v/uh the ekclicn ofthe first respondent. The evidence does not even go so far as to say thatthis public meeting was held in the Sadar Bazar Parliamentary constituencyfrcra where the first respondent was a candidate. In fact, Govind RamVerma (PW 19) admitted that the place where this public meeting was heldwas in Karol Bagh Constituency. It also came out in evidence that thispublic meeting was attended both by the first respondent and T. Sohan Laiand it could not therefore- possibly have been a public meeting exclusivelyin connection with the election of the first respondent. If it had been ex-clusively an election meeting of the first respondent, permission for holdingit would in the ordinary course have been obtained by Dr. Roshan Lai,but Dr. Roshan Lai clearly stated in his evidence that he never appliedfor nennission to hold this public meeting. It is true that the first respon-dent* spent a sum cf Rs. 35 for petrol for a scooter which his wife andone Miss Abrol utilised for going round asking women voters to attendthis public meeting which was going to be addressed by the Prime Minister,but that does not necessarily mean that this public meeting was arrangedby the first respondent or the expenses in connection vvith it were incurredor authorised by the first respondent. It is quite possible that even if thispublic meeting was organised by his political party for the purpose ofgeneral party propaganda, the first respondent would make efforts to per-suade persons within the area of his constituency to attend this publicmeeting as that would indirectly help in his election campaign. But onthat account alone, without any positive evidence pointing in that directionno responsibility for incurring or authorising expenditure in connection with

E.L.R.] KANWARLAL GUPTA V. AMAR NATH CHAWI.A 43-

this public meeting could be fastened on the first respondent. The petitionerpointed out that the first respondent had been shifting his stand from timeto i.me as to who was responsible for holding this public meeting. WhenGirdhan Lai Raval (PW 35) was in the witness box, a suggestion was madeto mm in cross-examination on behalf of the first respondent that thispuouc meeting had been arranged by the District Congress Committee.Karoi Bagh. but later on the first respondent chanted his stand and came'forward with the case that the Delhi Pradesh Congress Committee wasresponsible for this public meeting. The petitioner" contended tl-at thisequivocation and uncertainty on the part of "the first respondent in rc'gardto a matter on which he, as the then Secretary of the Delhi PradeshCongress Committee, was bound to have definite information and knowledge,casi a grave doubt on the truthfulness and veracity of the first respondentwhen he den:ed his respons''biliiy for this public meeting. There' is consi-

Conaress Committee, Karol Bagh or the Delhi Pradesh Congress Commit-tee. He was the Secretary of the Delhi Pradesh Congress Committee andhe must surely have known as to who arranged this public meeting, whetherit was the D;strict Congress Committee. Karol Bagh or the Delhi PradeshCongress Committes. Then why did the first respondent not come outwith a positive case right from the beginning ? This does give rise tosuspicion that perhaps the first respondent had something to hide from theCourt. If in fact this public meeting was arranged by the District CongressCommittee, Karol Bagh, the first respondent could have easily called theSecretary of that Committee to prove this fact. Equally, if the DelhiPradesh Congress Committee were responsible for this public meeting, thefirst respondent, who was the then Secretary, could have easily producedthe records of the Delhi Pradesh Congress Committee to show that theexpenditure in connection with this public meeting was incurred by thatorganisation. In fact the petitioner summoned C. L. Parvaua, PermanentSecretary of the Delhi Pradesh Congress Committee, to produce the recordsin connection with this public meeting, but this witness stated that theDelhi Pradesh Congress Committee d'd not maintain any record of themeetings addressed by the Prime Minister. If this public meeting wasarranged by the Delhi Pradesh Congress Committee and the expenditurein connection with it was incurred by that organisation, it is difficult _ tobelieve that no record was maintained by it. We cannot escape the feelingthat the record was being deliberately kept back from the Court byC. L. Parvana who came on behalf of the Delhi Pradesh Congress Com-mittee. It may also be noted that through C. L. Parvana was cited as awitness, supplementary list of witnesses filed on 4th Feb.. 1972 and he wassummoned to come "with record relating to election meetings addressed bySmt. Indira Gandhi including the meeting addressed in Idgali, Delhi", thefirst respondent did not call him in evidence and bring the record of theDelhi Pradesh Congress Committee relating to this; public meeting beforethe Court. The first respondent, thus, failed to show that expenditure mconnection with this public meeting was incurred by the Delhi PradeshCongress Committee or the District Congress Committee, Karol Bagh. _ That.however, cannot help the petitioner because the burden is on the petitionerto establish that the expenditure in connection with this public meeting wasincurred or authorised' by the first respondent and of that, unfortunatelyfor the petitioner, there is"no evidence. The expenditure in connection withthis public medting at Idgah Road cannot, therefore, be attributed to thefirst respondent.

4 4 KANWARLAL GUPTA V. AMAR NATH CHAWLA [VOL LVH

We may now consider the item of expenditure representing printingcharges of hand bills and posters paid to Sood Litho Press and the cost ofpaper required for the purpose of printing these hand bills and posters Thefiril £e-?P°ndent admitted that an expenditure of Rs. 100 was incurred byhim in connection with printing of 5000 hand bills coata.ning appeal of thePrime Minister, by Sood Litho Press and this expenditure was shown byhim in his return of expenses. The controversy, however, was whether thisamount of Rs. 100 paid to Sood Litho Press related only to the chargesfor printing the hand bills or it covered also the cost of paper requiredfor the purpose. There was a Bill of Sbod Litho Press bearing No. 798,dated 27th February, 1971 in respect of this amount of Rs. 100 and thatwas filed by the first respondent with the Returning Officer along with hisreturn of expenses. This bill was produced in court by D. B. Bhardwaj(PW 5) from the office of the Returning Officer in obedience to a summonsiobtained by the petitioner. When this bill was produced, it bore an endorse-ment "complete Prtg. etc." and immediately below that, another endorse-ment "Printing charges only", but this second endorsement appeared scoredout. The First respondent did not offer any explanation in his examina-tion-in-chief as to how and in what circumstances the second endorsement"Printing charges only" ,was scored out. In fact, he did not say anythingin his examination-in-chief in regard to this bill of Sood Litho Press. Itwas only in cross-examination that he stated for the first time that thecharges mentioned in this bill included the cost of paper. He was, however,constrained to admit that it was not stated in this bill in so many wordsthat the charges included the cost of paper. But he relied on the word"etc." in the first endorsement "complete prtg. etc." and contended thatthis word suggested that the charges not only related to printing but alsocovered the cost of paper and it was for this reason that the second endorse-ment "Printing charges only" was scored off as inappropriate. When it wasput to him in cross-examination that the second endorsement "Printingcharges only" was scored off by him after he had received the bill, hedenied the suggestion and stated that the bill came with this endorsementscored off. The case of the first respondent, therefore, was that the secondendorsement "Printing charges only" was scored off at the time when thebill was issued by Sood Litho Press. But this case was put forward forthe first time in the cross-examination of the first respondent. When TaufiqFarooqi (PW 2), the Manager of Sood Litho Press, was in ihe witness box,no suggestion was made to him that when he issued this bill, he scored outthe second endorsement "Printing charges only". Taufiq Farooqi hadbrought the Bill Book of Sood Litho Press for the relevant period and hestated in his evidence that he found from a copy of this bill which was inthe Bill Book that the bill was "in respect of 5000 hand bills appeal ofSmt. Indira Gandhi, complete page, charges only at the rate of Rs. 20 per1000 for Rs. 100". This statement of Taufiq Farooqi was not challengedon behalf of the first respondent in cross-examination and it must, therei-fore. be accepted that the copy of this bill in this Bill Book contained thesecond endorsement "Printing charges only" and it was not scored off.Now it is difficult to believe that when Taufiq Farooqi issued this bill, heshould have cancelled the second endorsement "Printing charges only" onthe original of this bjjl, but left it unscored off in the carbon copy. Infact no such suggestion was made to Taufiq Farooqi. It was not so statedeven by a single witness of the) first respondent. No explanation wasoffered in the evidence led on behalf of the first respondent unravelling themWery surrounding the scoring off of the second endorsement "Printingcharges only" On this state of the evidence, the conclusion is irresistiblethat when this bill was issued by Sood Litho Press, it bore the second


endorsement "Printing charges only" as did the carbon copy produced byTaufiq Farooqi and this conclusion is strengthened and fortified by thefact that the ink of the line scoring the second endorsement "Printingcharges only" is of a different shade; than the ink of the words in thesecond endorsement. Then again, there is a very important circumstancewhich shows beyond doubt that the second endorsement "Printing chargesonly" was scored off at some subsequent stage after the issue of the bill.This circumstance constitutes a rather disturbing and disquieting feature ofthe case. The original bill was admittedly filed by the first respondent withthe Returning Officer along with his return of expenses. Before it wasproduced by D. B. Bharadwaj (PW 5), the petitioner applied inter alia fora certified copy of this bill and he got a certified copy on 16th June, 1971which showed the second endorsement "Printing charges only" intact with-out any scoring. The inference is1, therefore, inevitable that on 16th June,1971 when a certified copy was issued by the office of the Returning Officerthe original bill contained the second endorsement "Printing charges only"and this second endorsement was not scored off. But when the first respon-dent obtained a certified copy on 3rd August, 1971, this certified copy didnot contain the second endorsement at all, which would mean that in theoriginal bill it was scored off. There can, therefore, be no doubt that thesecond endorsement "Printing charges only" in the original bill was scoredoff sometime between 16th June, 1971 and 3rd August 1971 when theoriginal bill was in the office of the Returning Officer. We are not con-cerned to inquire as to who was responsible for this unauthorised scoringoff of the second endorsement. That would be a matter for the ReturningOfficer or other appropriate election authorities to investigate and deter-mine. But we cannot help mentioning that the scoring off of the secondiendorsement was certainly advantageous to the first respondent. The firstrespondent contended that the second endorsement limiting the amount ofthe bill to printing charges only was inappropriate, since the work 'etc ' inthe first endorsement suggested that the amount of the bill covered not onlyprinting charges but also the cost of paper, but this contention is also futile.It is difficult to see how the first endorsement "complete printing etc." canpossibly be construed as including the cost of paper. It was precisely inorder to stave off such an argument as this that the second endorsement"Prinfng charges only" was made in the bill when it was issued by SoodLitho Press. It may be noted—and this is a very important circumstance—that when Taufiq Farooqi was in the witness box, no question was put tohim on behalf of the first respondent requiring him to explain what hemeant by the word 'etc ' and suggesting that this work was intended toinclude the cost of paper. There is also another circumstance whichstrongly militates against the contention of the first respondent. If thecost of paper were included in the bill, it would have been shown as aseparate item and sales tax would have been charged on it as in the caseof the bill of Kapur Printing Press R 18 and the estimate given byPremchand Grover R 6. The absence of sales tax in the bill of KapufPrinting Press R-18 and the estimate given included in the amount of thebill. We are, therefore, of the view that the amount of Rs. 100 shown inthe bill represented only printing charges and did not include the cost ofpaper. The cost of paper utilised in printing 5000 hand bills containingthe appeal of the Prime Minister would, therefore, have to be added to theelection expenses of the first respondent.

Now this item of cost of paper was suppressed by the first respondentand we would, therefore ha#e to make a reasonable estimate of the ex-penditure incurred on it on the basis of the material on record. There is,


fortunately for the petitioner, evidence on this point which enables us tomake a reasonable estimate of the cost of paper wh:'eh must have beienutilised in printing these 5000 hand bills. Babu Ram Sharma (PW 11)stated in his evidence that Sarvadeshik Press, of which he was an employee,printing 8000 hand bills containing the appeal of the Prime Minister forthe first respondent and these hand bills were- like the document markedA/13 which as deposed to by Taufiq Farooqi, was similar to the handbillsprinted by Sood Litho Press. According to Babu Ram Sharma, four reamswere utilised by ServadeshJk Press for printing 8000 handbills like A/13and the cost of paper utilised for this purpose was Rs. 30 per ream. Now,if four reams were utilised for printing 8000 pamphlets, it must follow a"fortiorari" that the printing of 5000 pamphlets must have required at leasttwo and a half reams and, according to the price given by Babu RamSharma, the cost of these two and a half reams of paper would be Rs. 75.It is true that Babu Ram Sharma was a witness who was summonedprimarily to depose to the printing of various pamphlets and hand bills bySarvadeshik Press for the first respondent and his evidence on that pointwas seriously challenged on behalf of the first respondent, but so far asthe quantity of paper required for the purpose of printing hand bills likeA/13 and the price of such paper were concerned, his evidence was not atall challenged in cross-examination. We can, therefore, safely estimatethe cost of paper utilised in printing 5000 hand bills by Sood Litho Pressat Rs. 75, being the price of two and a half reams of paper at the rateof Rs. 30 per ream.

We must now refer to the second bill of Sood Litho Press which wasdisputed by the first respondent. Taufiq Farooqi produced in his examina-tion-in-chief a copy of bill No. 705, dated 18th February, 1971 in the nameof "Shri Amar Nath Chawla through Shri J. P. Goel" for Rs. 54 in respectof printing charges of posters, hand bill and b'iabat. The copy of thisbill, which was marked Ex. PW 2/1, carried at the foot of it an endorse-ment, namely, 'Printing charges only" and according to the evidence givenby Taufiq Farooqi, it bore his initials. Taufiq Farooqi admitted that theprinting work covered by this bill was undertaken by Sood Lithe Press onbehalf of the first respondent, but in an attempt to support the 1st respon-dent, he started by saying, almost at the commencement of his examina-tion-in-chief, that he did not know the first respondent, though there was;no provocation to him to do so. We are not prepared to accept his state-ment that he d?d not know the first respondent. It is apparent from hisevidence that he was out to favour tha first respondent. The petitioner infact apprehended this situation and he, therefore, obtained from this witnessan affidavit dated 17th August, 1971 and in this, affidavit the witness statedon oath that the original of Armexures 'A' and 'B' mentioned in the electionpetition and attached to the same were printed through us with our printline. Shri Amar Nath Chawla accompanied by Shri J. P. Goel—had givenme the orders for printing the said annexures and the manuscript/subject-matter was handed over to me by the said Amar Nath Chawla". Whenconfronted with this affidavit, he had to admit that it bore his signatureson both pages, but came out with an explanation that this affidavit hadbeen brought to him by some Aryasamaji boys headed by a MabinderKumar Shastri and they forced him to sign this affidavit and he accordinglysigned it and gave it to Mahinder Kumar Shastri. This explanation is,to say the least, puerile. It is difficult to believe that this witness shouldhave been forced to sign this affidavit by some Arya Samaji boys headedby Mahinder Kumar Shastri. He does not say what was the force usedby these persons and why he could not resist the use of this force andsuccumbed to it. He was, according to his statement in evidence, forced


to put his signature on this affidavit in his press. But if that were true, hewould have surely shouted for help because the shop of Sood Litho Pressis situate on the main road and there are quite a few other shops adjoin-ing to it. Moreover, he would have immediately complained to hisemployer, Krishan Avtar Agarwal. the proprietor of Sood Litho Press, andalso lodged a complaint with the police, or at any rate addressed a noticeto Mahinder Kumar Shastri, but admittedly he did not take any action ormake any report to my proprietor or anybody else that I have bsen forcedto sign this affidavit". This is most unnatural and clearly exposes thehollownesy of the explanation given by the witness. We have no doubtthat this affidavit was made by the witness voluntarily and he knew the firstrespondent as well as the fifth respondent but deliberately feigned ignorancein order to support the case of the first respondent. It is, therefore, clearfrom the evidence of this witness that Sood Litho Press carried out printingwork for the first respondent as shown in the bill Ex. PW 2/1. There isX'O reason to doubt his testimony on this point. If at all he could, hewcuid have tried to help the first respondent, but obviously, there beingdocumentary evidence in the shape of Ex. PW 2/1 in his Bill Book, hewas helpless and he had to depose to it. The learned Trial Judge refusedto rely on the copy of the bill Ex. PW 2/1 on the ground that TauftqFarooqi, who produced it, was an unreliable witness. But he was clearlyin error in adopting this approach because, in the first place, the copy ofthe bill Ex. PW 2/1 was documentary evidence which did not depend forits validity arid authenticity on the oral evidence of Taufiq Farooqi, andsecondly. Taufiq Farooqi turned against the petitioner and tried to helpthe first responSent, and therefore, any evidence given by h;m against thefirst respondent could not be regarded with suspicion, but was, on the con-trary, more credible. It may be noted—and this is almost a conclusivecircumstance—.that there was no cross-examination of Taufiq Farooqi inregard to the copy of the B:ll Ex. PW 2/1. His evidence on this point wasnot at all challenged m cross-examination on behalf of. the first respondent.It was not even suggested to him that the first respondent did not get print-inr< work done by Sood Litho Press as shown in the copy of the bill Ex.PW 2/1 or that the copy of the bill Ex. PW 2/1 was false and fabricated.The only question put to Taufiq Farooqi was whether any declaration wastaken by him from any one in connection with the printing of the handbills and posters forming the subject matter of the copy of the bills Ex.PW 2/1 and his answer was in the negative. But that is far from achallenge to the printing work shown in the copy of the bill Ex.PW 2/1. Merely because no declaration was taken by Sood LithoPress from any one in connection with this printing work it doesnot necessarily follow that no printing work was done by them. Itis not uncommon to find that during elections posters and hand bills areprinted without complying with the requirements of section 127A. The:reason is, as pointed out by this Court in Rahim Khan v. Khtirshid Ahmed& Ors.{6) that "there is no agency of the law which takes prompt actionafter due investigation, with the result that no printer or candidate or otherpropagandist during elections bothers about the law and he is able;successfully u> spread scandal without a trace of the source, knowing thatnothing will happen until long after the election, when in a burden some/litigation this question is raised." We may emphasise once again that thereshould be some independent semi-judicial instrumentality set up by law,which would immediately investigate, even while the election fever is onand propaganda and canvassing are in progress and the evidence is raw

(6) CA. 816 of 1973, dec. on August 8, 1974.

48 KANWARLAL GUPTA V. AMAR. NATH CHAWLA [VOL. LVII

and fresh how the offending hand bills and posters have come intoexistence, who has printed them and who is responsible for getting themprinted for "violations thrive where prompt check is unavailable". As theevidence goes, there being no challenge to the authenticity of the copy ofthe bill Ex. PW 2/1 and to the testimony of Taufiq Farooqi on this point,we must accept the case of the petitioner that the first respondent got print-ing work done as shown in the copy of the bill Ex. PW 2/1 and incurredan expenditure of Rs. 54 for that purpose.

But as the endorsement on the copy of the bill Ex. PW 2/1 shows thisexpenditure of Rs. 54 was only in connection with the printing charges.The cost of the paper utilised for the purpose of printing would also haveto be added in determining the expenditure incurred or authorised by thefirst respondent. Now it is evident from the copy of the bill Ex. PW 2/1that the total number of posters printed was 3700. Taufiq Farooqi did notstate in his evidence as to what were these posters printed by his firm anddenied that they were the same as the poster Annexure 'B' to the petition.But the poster Annexure 'B' to the petition clearly bears the Print-line ofSood Litho Press and since the first respondent refused to disclose to thecourt what were the posters which were got printed by him from SoodLitho Press, we would not be unjustified in holding that the poster whichwere printed by Sood Litho Press for th6 first respondent were the sameas Annexure 'B' to the petition. Babu Ram Sharma (PW 11) stated in hisevidence that for priting 1000 posters of the size of Annexure 'B' to thepetition, two reams of paper would be required and the price of paperutilised in the poster Annexure 'B' to the petition was Rs. 50 per ream atthe relevant time. To the same effect was also the evidence of Chater Sain(PW 55). There was no cross-examination of either of these two witnesses,on this point as regards quantity and price of paper. We must, therefore.accept this evidence and on the basis of this evidence, we can safely con-clude that the total cost of paper utilised in printing 3700 posters wasRs. 375. The hand bills shown to have been printed in the copy of thebill Ex. PW 2/1 were 2000 and again, for the same reasons, we do not thinkwe would be wrong in taking the view that they were the same as fhe handbillAnnexur© 'A' to the petition, because Annexure 'A' to the petition bearsthe printline of Sood Litho Press and the first respondent suppressed fromthe Court information as to what were the hand bills printed by Sood LithoPress for him. Babu Ram Sharma (PW 11) stated that half ream wouldbe required for printing 1000 hand bills of the size of Annexure 'A' tothe petition and the price of paper used for Annexure 'A' wasi Rs. 30per ream at the relevant time and this statement was supported by theevidence of Chater Sain (PW 55). The cost of a paper utilised in printing2000 hand bills would, therefore be Rs. 30. Thus, the aggregate cost ofpaper utilised in printing posters and hand bills as shown in the copy ofthe bill Ex. PW 2/1 would come to Rs. 405 but we may take it at Rs. 300on a very conservative basis.

We must, therefore, add to the expenditure incurred by the first res-pondent Rs. 75 being the cost of paper utilised in printing 5000 handbills shown in the admitted bills of Sood Litho Press, Rs. 54 being theamount of the bill of Sood Litho Press of which the copy is exhibited asPW 2/1 and Rs. 300 being the cost of paper utilised for printing 3700 postersand 2000 hand bills shown in the copy of the bill Ex. PW 2/1.

It would thus be seen that the total expenditure proved to havei beenincurred or authorised by the first respondent, in addition to that shownby him on his return of expenses, adds upto Rs. 4,800+Rs. 75+Rs. 54 +Rs. 300, making in the aggregated Rs. 5,229. Now, admittedly the expen-diture shown by the first respondent in his return of expenses was 5,415,62.

E.L.R.] SHRt RAJ NARAIN V. SMT. INDIRA GANDHI 49

If the further expenditure of Rs. 5,229 is added to this admitted expen-diture' of Rs. 5,415,62, the total expenditure proved to haye been incurredor authorised by the first respondent comes to Rs. 10,644,62 and thatwould bs clearly in excess of Rs. 10,000 which is the prescribed limit.That would be sufficient to invalidate the election of the first respondent onthe ground of corrupt practice defined in section 123(6) of the Act.

G'r. this view it is unnecessary for us to consider the other items ofexpenditure alleged to have been incurred or authorised by the first res-pondent and we do not, therefore propose to d'scuss them, particularly asthey are of a debatable character. We also do not think it necessary todiscuss issues 8 and 9 relaxing to publication of Annexures 'A' and 'B' tothe pc'it'on and oral repetitions1 of the allegations confa;ned in Annexures'A' and ' 3 ' to trie petition at various public meel'ngs set out ;n the parti-culars supplied by the petitioner. There can be no doubt that the allega-tions contained in Aniexures 'A' and 'B' to the pstition related to the per-sonal character cf the petitioner and they were reasonably calculated toprejudice the prospects of his election, but it is a highly con'.rovers;alquestion whether they were published by the first respondent or his electionagent by bringing out Annexures 'A' and 'B' to the petition or orally atthe public meetmgs and we do not propose to express any opinion on it.It may be noted that the learned Trial Judge found, on a consideration ofthe evidence, that the allegations conta'ned in Annexure 'A* and 'B' tothe petition were true, but this finding was seriously attached en behalf ofthe petitioner and it was contended that there was no evidence at all onthe basis of which the learned Trial Judge could arrive at such a finding.There is a prima jade considerable force in this contention of petitioner,because the finding of the learned Trial Judge that these allegations weretrue appears to be based primarily on the reports of the proceedings in theParliament which are no proof of the contents of the allegations made inthe course of such proceedings and it does ieera to be a little difficult tosustain it. However, as pointed out above, it is not necessary to Respondent.The first respondent will pay to the petitioner upon it.

Since we are of the view that the first respondent is guilty of thecorrupt practice set out in section 123(6) of the Act, we allow the appealand sat aside the election of the first examine the correctness of this findingand to pronounce costs throughout.

Appeal allowed.

THE HIGH COURT OF JUDICATURE AT ALLAHABAD

SHRI RAJ NARAIN

V.

SMT. INDIRA NEHRU GANDHI AND ANR.(J. M. L. SlNHA, J.)

June 12, 1975Representation of the People Act, 1951, Section 123(1), (3), (5), (6) and(>7). Candidate while Prime Minister using services as election agentof person who allegedly resigned office as gazetted officer—oral accep-tance of resignation—if effective. Prime Minister using Air Force

50 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVII

aircraft during election campaign—effect of. State Government officialsassisting in construction of rostrums and making police and other secu-rity arrangements for public meetings of candidate—if amount to corruptpractice under s. 127(7). Allegations of corrupt practices of bribingvoters, their free conveyance in vehicles, expenditure in excess of pres-cribed limits—if proved.

The first respondent who was at the time the Prime Minister of India won herelection to the Lok Sabha in 1971 from the Rae Bardi constituency. The petitionerchallenged her election on the grounds that:

(1) The first respondent held herself out as a prospective candidate from theRae Bareii constituency immediately after the dissolution of the Lok Sabhaon 27th December, 1970 and that, for the furtherance of her electionprospects, she obtained and procured the assistance of Shri Ytsh Pa! Kapur,a G*£/ei*ed Officer in the Government of India holding the post of Officeron Srsacinl Duty; and that thereby she committed a corrupt practice underSection 123(7) of the Representation of the People Act, 1951;

(2) The first respondent and her election agent procured the assistance of mem-bers of the Armed Forces of the Union for the furtherance of herelection prospects in as much as the members of the Armed Forces arrangedplanes and helicopters of the Air Force at her instance for her flights toenable her to address meetings in her constituency arid thereby the firstrespondent committed another corrupt practice under Section 123(7) of theAct;

(3) The first respondent and her election agent also obtained and procured theassistance of a number of Gazetted Officers and members of the PoliceForce for the furtherance of her election prospects inasmuch as the sen, seesof the District Magistrate, Rae Bareii, the Superintendent of PoliceRae Bareii and the Home Secretary, U.P. Government, were utilized for thepurpose of—

(a) construction of rostrums and installation of loudspeakers at various placeswithin the constituency where the first respondent addressed her cS^;:ionmeetings: and

(b) making arrangements of barricading and posting of police personnel onthe routes by which the first respondent was to travel in her consti'j'-encyand at places where she was to address meetings, in order to give publicityto her visits and to attract larger crowds and thereby she committedanother corrupt practice under Section 123(7) of the Act;

(4) One Shri Yashpal Kapur, the election agent of the first respondent and herother agents with the consent of Shri Yashpal Kapur, freeiv distributedquilts, blankets, dhotis and liquor among the voters to induce them to wottfor her and thereby the first respondent committed the corrupt practice ofbribery under Section 123(l)(A)(B)(ii) of the Act;

(5) The first respondent and her election agent made extensive appeals ta thereligious symbol of cow and calf and thereby committed a corrupt pr-icliceunder Section 123(3) of the Act;

(6) Shri Yashpal Kapur, the election agent of the first respondent and someother agents or persons with his consent hired and procured a number ofvehicles for the free conveyance of electors to the polling stations andthereby committed corrupt practices under Section 123(5) of the Act:

(7) The first respondent and her election agent incurred or authorized expendi-ture in contravention of section 77 of the Act and thereby committed acorrupt practice under Section 123(6) of the Act;

The first respondent denying the allegations against her pleaded:(i) That Shri Yashpal Kapur resigned from his post on 13th January 1971 and

the resignation was accepted with effect from 14th January 1971 in regardto which a notification dated 25th January 1971 was issued by the PrimeMinister's Secretariat. In the additional written statement it was added thatShri P. N. Haksar the then Secretary to the Prime Minister told Shri YashpalKapur on the same date on which the resignation was tendered that it wasaccepted and that formal orders would follow; Shri Yashpal Kapur becameher election agent on 4th of February 1971 and that during the period hewas a gazetted officer in the Government of India he did not do any workin furtherance of her election prospects;

E.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI ^

(ii) Referring to the use of planes and helicopters of the Air Force, the firstrespondent admitted that on 1st February 1971 she went by a plane of theAir Force from Delhi to Lucknow, from where she went by air to RaeBareli addressing meetings en route. She further admitted that on 24thFebruary 1971 she went by a helicopter of the Air Force to Gonda or.regular party work and that from there she went by car to Lucknow,Unnao and Rae Bareli, addressing public meetings in several constituenciesbesides her own. She referred to the Pillai Committee Report and OfficeMemoranda issued by the Government to plead that the aforesaid flightswere made by her in compliance thereof. It was further pleaded thatunder the rules, bills for these flights were to be paid by the Party andmost of them had already been paid. According to her, neither did shenor her election agent solicit, require or order the use of the Air Forceplanes, and that the Government of India provided the planes as part ofiheir normal duty;

(iii) That the respondent or her election agent did not obtain the assistance ofthe District ?vfagisi:rate Rae Bareli and the Superintendent of Poiice, RaeIj.ieli nor that of the Home Secretary, U.P. Government for any of thepurposes alleged in the petition. She referred to the instructions issued bythe Comptroller and Auditor General of India, dated 29th November 395Sto the Accountant Generals of all States as also to the letter dated 12thJanuary 1959 issued by the Government of India. She pleaded tlwt thearrangements for posting of police on the routes which she followed andthe arrangement of rostrums were made by the State Government itself incompliance of these instructions. In regard to the loudspeakers, she pleadedthat they were arranged by the District Congress Committees and not bythe Officers of the State Government. The first respondent denied that anydirections or instructions in that regard were issued by her or her electionagent.

(iv) The allegations regarding distribution of blankets, dhotis and liquor wereabsolutely false;

(v) Referring to the symbol of cow and calf the first respondent pleaded that(a) it was not a religious symbol and that it was wrong that extensive appeals

were made by her or her election agent to that symbol. She added thatshe and her election agent merely informed the voters that the symbolof her party was the "cow and calf" and that the voting mark shouldbe put against that symbol; and

(b) the decision of the Election Commission allotting the symbol of 'cowand calf to her Party was final and could not be made a ground ofattack, nor could the court go into that question in the presentproceedings;

(vi) The allegations regarding hiring and procuring of vehicles and the usethereof for conveyance of the voters to the polling stations were false;

(vii) The allegation that the first respondent or her election agent incurredexpenditure in excess of the prescribed limit was also wrong;

HELD: Allowing the petition:

The election of the first respondent must be set aside.(1) On the evidence it was established that the first respondent had held herself

out to be a candidate for election to the Lok Sabha from the Rae Bareli constituencyfrom the 29th December 1970 when she denied during a Press Conference thtt shewas going to change her constituency. Her contention that she held herself out isa candidate from 1st February 1971 could not, therefore, be accepted.

Whereas the evidence tendered clearly established that Shri Yashpal Kapur hadsubmitted his resignation on 13th January 1971 and an oral order accepting theresignation had been made a Presidential Notification dated 25-1-1971 regardingthe fact that the resignation had been accepted on the 14th January was gazettedon 6-2-1971. This indicated that the written order accepting the resignation wasnot made till the 25th January and Shri Yashpal Kapur continued to be a gazettedofficer in the Government of India until that date.

There was evidence to show that the first respondent obtained and procured theassistance of Shri Yashpal Kapur prior to the 24th January 1971 in furtherance ofher election prospects while he was still a gazetted officer. She was therefore guiltyof the corrupt practice under Section 123(7) of the Act.


(2) On the evidence it was clear that the first respondent obtained theassistance of officers of the State Government particularly the District Magistrate,the Superintendent of Police, the Executive Engineer, P.W.D., and the Engineer,Hydel Department, for construction of rostrums and arrangements for the supplyof power for loud speakers in meetings addressed by her on 1st February 197! and25th February 1971;' and further that the said assistance was for the furtherance ofthe prospects of the first respondent in her election. On this account also she wasguilty of corrupt practice under Section 123(7) of the Act.

( Th._ e v i " m the allegation that the first respondent having.fli n i n *> r F •* it n ui Delhi to Lucknow on 18th February 197 5 was" i t\ oi c i i n "i. of the Armed ForcJs cf the Union for thei i s H i he election in violation of Section 123C7). (CaseL I i C R T rt referred to with regard to She special positionof t P m° li T K •> the Leader cf a Politic?.! Party).

(4) Allegations of bribery under Section 123(1), appeals to the religious symbolof 'cow and calf in vioiat'on of Section 123(3), conveyance of electors to thePolling Stations in motor vehicles in violation of Section 123(5) and expenditure inexcess of the prescribed limit in contravention of Section 77 read with Section 123(6)were not established and must therefore be rejected.

Prakash Vir Shastri and ors. v. Union of India and ors., AIR (1974) Delhi 1.

Babn Bhai Vallabhdas Gandhi v. Pilloo Hotni Modi, 36 ELR, Gujarat 108,pp. 123-124.

Haji Abdul Wahid v. B. V. Keskar and am., 21 ELR 409 at p. 432 Allahabad.

Moti Lai v. Mangla Prasad, AIR (1958) Alld 794 at 797.

Bhesh Misra v. Ram Nath Sarma and ors., 17 Election Law Reports 243 atp. 253.

Babn Bhai Vallabhdas Gandhi v. Pilloo Homi Modi, 36 ELR 108 on pp. 126and 127.

C. Chiranitevulu Naidu v. E. S. Thyagamjan, 25 ELR 201 at p. 217.

Raj Krushna Boss v. Binod Kanungo and ors., (9) ELR 295 (S.C.).

Satya Dev Bushahri v. Padam Dev and ors., (10) ELR 103 at pp. 112 and 117.

Chandrashekh.ar Singh v. Sarjoo Prasad Singh and anr., (22) ELR 206 at p 217Patna.

Brahma, Datia v. Paripuma Nand and ors., Election Petition No. 1 of 1971, AlldH. C. decided on 9-11-1971. ,

Mohammad Hanif Qureshi and ors. v. State of Bihar, AIR (1958) SC 731 atpp. 744 and 755 Para 22.

Bhariender Singh v. Ram Sahai Pandey and ors., AIR (1972) M. P. 167 at p. 179.

Shital Prasad Misra v. Nitiraj Singh Chaudhary, Election Petition No 2 of 1971decided by M. P. H. C. on 21-7-1971.

Sri Prasanna Dai Damodar Das Palwar v. Indn Lai Khanhaiya Lai Yagnik:Decided by the HC of Gujarat on 27-8-1971 published in Gujarat Gazette on20-7-1972.

Shah Jayantilal Amba Lai v. Kasturl Lai Nagin Das Doshi, 36 FLR 18S.

Baijinath Singh Vaidya v. Ravendra Pratap Singh, 36 ELR 327.

Bishambar Dayal v. Raj Rajeshwar and other, 39 ELR 363 at 376.

Dinesh Rai Dangi v. Daulat Ram, 39 ELR 463 at 476.

Shyam Lai v. Mansa Din and ors., 37 ELR 67 at 89.

B. P. Maurya v. Prakash Vir Shastri, 37 ELR 137 at 147.

Sahodrabai Rai V. Ram Singh Aharwar and ors., 37 ELR 176 at 188.

Viswanath Prasad v. Salamatullah and ors., 27 ELR 145 at 186.

E.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 53

Laclii Ram v. Jamuna Prasad Mukhariya and ors., 9 ELR 149 at 157.JCanwar \al Gupta v. Amur Nath Chawla, AIR 1975 S.C. 308.

State of Bihar v. Rai Bahadur Hurdut Roy Moti Lall Jute Mills Ltd., AIR 1960S.C. 378.

Barsi Municipality v. Lokmanya Mills, AIR 1973 S.C. 102.

Razik Ram v. /. S. Chauhan, AIR 1975 S.C. 667 paras 15 and 16.

Rahim Khan v. Khurshid Ahmad, AIR 1975 S.C. 290.

Maghra) Fatodia v. R. K. Birla, AIR 1971 S.C. 1295.

Mohan Singh v. Bhanwar Lai, AIR 1964 S.C. 1366 para 12,

Jagdev Singh v. Pratap Singh, AIR 1965 S.C. 183.

S. Khader Sheriff v. Munnuswami, AIR 1955 S.C. 775 at p. 777,

The Counties of Elgin and Nairn Case, (VO'M & Hp. 1).

The Lichfield Case (VO'M & Hp. 27).

The Borough of Great Yarmouth Case (VO'M &Hp. 176).

The Bodmin Division of the County of Corrwall Case (VO'M & Hp. 223).

The Borough of Walsall Case (IVO'M & Hp. 123).

The Berwick-Upan Tweed Division of the County of Northumherl and Case(VII O'M & Hp. 1).

Munuswami Gounder v. Khader Sheriff and others, 4 Election Law Reports 283at p. 292.

Krishna Kama v. Banmali Bahn, AIR 1968 Orissa 200.

Ram Murti v. Sumba Sadar and Ors,, 2 Election Law Ranorts 331.

Bahori Lai Paitwal v. District Magistrate, Bulandshahr, A l l 1956 Allahabad 511.

Edwards M. Edwards v. United States, 1880 26 L.E. 314(C).

Raj Kumar v. Union of India, AIR 1969 S.C. 180.

Raj Narain v. 5m.'. Indira Nehru Gandhi, AIR 1972 S.C. 1302.

In the matter of the Gloucestor, Aberystwith and South Wales Railway Com-pany and of the Joint Stock Companies Winding-up Acts Maitlands CaseEnglish Reports 43 Chancery 708:

Lachford Premier Cinema Limited v. Ennion Chancery Division, Volume 2,1931.

Morris v. Baron and Company, 1918 A.C. 1.Attorney General for New South Wales v. Perpetual Trustee Co., Ltd. andothers, AM England Law Reports 846.Ghssop v. Glossop (1907) Vol. 2, Chancery Division.hi'.cind Revenue Commissioners v. Hainhrook (1956) 1 All England Law Reports807.Sudarsana Rao v. Christian F;lhi end Ors.P R. N. Abdul HOG V. Catparfi Industries Ltd , AIR 1560 Madras 4S2.A. ft. Ranqrez v. M N. Km I and others, 40 Election L-r* R?r>orts 130,V. P Gindnoniya v, St.v: of Madhy.i Pradesh and another, AIR 1970 S.C. 1494./, ,~'.'yi? v..-,.., siiqij v. Maham Makadjv Nand Ciri. 4: Election-Law ReportsIS3 at p. 1S3.

...referred toET.JiCnON PETIT'ON N"). 5 OF 197!

eonnect-rd with ' • . ' . ' . • 'WRIT PETITION NO, ?'r6! OF 1975

5 -345 Elec. Com./ND/8l

5 4 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVII

JUDGMENT

M. L. SINHA, J. : In the elections that took place for the Lok SabhaIn 1971, Sri Raj Narain (hereafter to be called the petitioner) and ShrimatiIndira Nehru Gandhi (hereafter to be called the respondent no. 1) werethe principal contenders from 22 Rae Bareli Parliamentary Constituency.The other two candidates in the field were Rameshwar Dutta Mondovand Swami Advaitanand. The respondent no. 1 obtained 1,83,309 votes.The petitioner got 71,499 votes. Rameshwar Dutta Mondov and SwamiAdvaitanand got 4,839 and 1,627 votes respectively. The respondent no. 1was accordingly declared elected. The petitioner has filed the presentpetition, challenging the election of respondent no. 1. Shorn of the groundsnot pressed or adhered to, the rest of the grounds on which the electionhas been challenged are as follows:

(1) That the respondent no. 1 held herself out as a prospectivecandidate from 22 Rae Bareli Constituency immediately after thedissolution of the Lok Sabha on 27;h November, 1970 and that,for the furtherance of her election prospects, she obtained andprocured the assistance of Sri Yashpal Kapur, a Gazetted Officerin the Government of India holding the post of Officer on SpecialDuly, and thereby ife respondent no, 1 committed a corn:ntpractice under section 123 (7"! of the Representation of the PeopleAct, 1951.

(2) That the respondent no. 1 and hex election agent procured theassistance of members of the Armed Forces of the Union forfurtherance of her election prospects, inasmuch as the membersof the Armed Forces arranged planes and helicopters of the AirForce at her instance for her flights to enable her to addressmeetings in her constituency, and thereby the respondent no. icommitted another corrupt practice under section 123 (7) of theRepresentation of the People Act.

(3) That the respondent no. 1 and her election agent also obtainedand procured the assistance of a number of Gazetted officers andmembers of the Police Force for the furtherance of her electionprospects, inasmuch as the services of the District Magistrate. RaeBareli, the Superintendent of Police, Rae Bareli and the HomeSecretary. U.P. Government were utilised for the purposes of—

(a) construction of rostrums and installation of loudspeakers atvarious places within the constituency where the respondentno. 1 addressed her election meetings; and

(b) making arrangements of barricading and posting of police per-sonnel on the routes by which the respondent no. 1 was totravel in her constituency and at the places where she wasto address meetings, in order to give publicity to her visits andto attract larger crowds, and thereby respondent no. 1 committedanother corrupt practice under section 127(7) of the Represen-tation of the People Act.

<4) That Sri Yashpal Kapur, the election agent of respondent no. 1,and her other agents with the consent of Sri Yashpal Kapur.freely distributed quilts, blankets, dhotis and liquor among thevoters to induce them to vote for her and thereby the res-pondent no. 1 committed the corrupt practice of bribery undersection 123(1) (A) (b) (ii) of the Representation of the People Act.


(5) That the respondent no. 1 and her election agent made extensiveappeals to the religious symbol of cow and calf and therebycommitted a corrupt practice under section 123(3) of the Repre-sentation of the People Act.

(6) That Sri Yashpal Kapur, the election agent of respondent no. 1,and some other agents or persons with his consent hired andprocured a number of vehicles for the free conveyance of electorsto the polling stations and thereby committed corrupt practiceunder section 123 (5) of the Representation of the People Act.

(7) That the respondent no. 1 and her election agent incurred orauthorised expenditure in contravention of section 77 of the Repre-sentation of the People Act and thereby committed a corruptpractice under section 123 (6) of the Representation of thePeople Act.

The respondent no. 1, denying the aforesaid allegations made againsther, pleaded:

(i) That Sri Yashpal Kapur, resigned from his post on 13th January,1971' and the resignation was accepted with effect from 14thJanuary, 1971, in regard to which a notification dated 25th.January, 1971 was issued by the Prime Minister's Secretariat. Inthe additional written statement it was added that Sri P. N. Haksar,the then Secretary to the Prime Minister toM Sri Yashpal Kapur,on the same date, on which the resignation was tendered, thatit was accepted and that formal orders would follow.

(ii) That Sri Yashpal Kapur, became her election agent on 4th ofFebruary, 1971, and that during the period he was Gazetted Officerin the Government of India he did not do any work in furtheranceof her election prospects.

(iii) Referring to the use of planes and helicopters of the Air Force,the respondent no. 1 admitted that on 1st February, 1971 shewent by a plane of the Air Force from Delhi to Lucknow, fromwhere she went by car to Rae Bareli, addressing meetings enroute. She further admitted that on 24th of February, 1971 shewent by a helicopter of the Air Force to Gonda on regular partywork and that from there she went by car to Lucknow, Unnaoand Rae Bareli, addressing public meetings in several constituen-cies besides her own. She referred to Pillai Committee Report andthe Office Memorandums issued by the Government of India toplead that the aforesaid flights were made by her in compliancethereof. It was further pleaded by her that, under the rules, bills forthose flights were to be paid by the A.I.C.C. and most of them hadalready been paid. According to her, neither did she nor herelection agent solicit, require or order the use of Air Forceplanes and that the Government of India provided the planesas part of their normal duty.

(iv) That the respondent or her election agent did not obtain theassistance of the District Magistrate, Rae Bareli and the Super-intendent of Police, Rae Bareli nor that of the Home Secretary,U.P. Government for any of the purposes alleged in the petition.She then referred to the instructions issued by the Comptrollerand Auditor General of India, dated 29th November, 1958 to

56 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LV«

the Accountant Generals of all the States, as also to the letter,dated 12th January, 1959, issued by the Government of India.She then pleaded that the arrangements for posting of police onthe routes which she followed and the arrangements of res'rums'were made by the State Government itself in compliance ofthose instructions. In regard to the loudspeakers, she pleadedthat they were arranged by the District Congress Committee andnot by the officers of the State Government. Respondent no. 1denied that any directions or instructions in that regard wereissued by her or her election agent.

(v) That allegations regarding distribution of blankets, dhotis andliquor were absolutely false.

(vi) Referring to the symbol of cow and calf, the respondent no. 1pleaded that—

(a) it was not a religious symbol and that it was wrong that exten-sive appeals were made by her or her election agent to thatsymbol. She added that she and her election agent merelyinformed the voters that the symbol of Congress (R) was cowand calf and that the voting mark should be put against thatsymbol, and

(b) the decision of the Election Commission allotting the symbol ofcow and calf to her party was final and could not be made aground of attack, nor can the Cou't go into that question, inthe present proceedings.

(vii) That the allegations regarding hiring and procuring of vehiclesand the use thereof for conveyance of the voters to the pollingstations were false.

That the allegation that the respondent no. 1 or her election agentincurred expenditure in excess of the prescribed limit was also-wrong.

On the pleadings of the parties one set of issues was framed by theCourt on 19th of August, 1971. Three additional issues were framed on27sh April, 1973. These issues are as follows :

Issues

(1) Whether respondent no. 1 obtained and procured the assistanceof Yashpal Kapur in furtherance of the prospects of her election whilehe was still a Ozetfed Officer in the service of Government of India. Ifso, from what date ?

(2) Whe'rrr at ?ho instance of respondent no. 1 members of theA r r r d Fore s of -be Union arranged Air Force clanes a"d helicoptersfor h.;r, flown by members of the Armed Forces, to enable her *.o addresselection m.^\]rlSz on 1st February. 1971 ard 25th February. 1Q71 ; andif KI. wh-f'Vr fh's c^n^:tufed a corrupt prac'ice under section 123(7) ofthe RespresentaUori of the People Act.

{V, Wh-s'-ier at the instance of respondent n;>. 1 and her else'ion ?,<r;ntYa^nn' TOp'i.r, the D^rict Magistrate of Ra~ Bareli, the Su^rintecdcntDf'PoVc-: of Rae Bareli and the Home Secretary of UP . Governmentirran^-d for r^s'Tiims, loudspeakers and barricades to be set up and formembers of the Police Force to be posted in connection with her election

EJL.R,] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 57

tour on 1st February, 1971 and 25th February, 1971 ; and if so, whetherthis amounts to a corrupt practice under section 123(7) of the Representa-tion of the People Act.

(4) Whether quilts, blankets, dhotis and liquor were distributed byagents and workers of respondent no. 1, with the consent of her electionagent Yashpal Kapur, at the places and on the dates mentioned m ScheduleA of the petition in order to induce electors to vote for her.

(5) Whether the particulars given in paragraph 10 and Schedule Aof the petition are too vague and general to afford a basis for allegationsof bribery under section 123(1) of the Representation of the People Act.

(6) Whether by using the symbol of cow and calf, which had beend to her party by the Election Commission, in her election campaign

the respondent no. 1 was guilty of making an appeal to a religious symboland committed a corrupt practice as defined in section 123(3) of theRepresentation of the People Act.

(7) Whether on the dates fixed for the poll voters were conveyed to"the polling stations free of charge on vehicles hired and procured for thepsrpose by respondent no. i's election agent Yashpa] Kapur, or otherpersons with his consent, as detailed in Schedule B to the petition.

(8) Whether the particulars given in paragraph 12 and Schedule Bof the petition are too vague and general to form a basis for allegationsregarding a corrupt practice under section 123(5) of the Representation ofthe People Act.

(9) Whether respondent no. 1 and her election agent Yashpal Kapurincurred or authorised expenditure in excess of the amount prescribed bysection 77 of the Representation of the People Act. read with rule 90,

as detailed in para 13 of the petition.

(10) Whether the petitioner had made a security deposit in accordancewith the rules of the High Court as required by section 117 of the Repre-

sentation of the People Act.

( iJ) To what relief, if any, is the petitioner entitled ?

Addi'ional Issues

{[) Whether respondent no. 1 obtained and procured 'he assistanceof Yashpal Kapur in furtherance of the prospects oi her election whilehe was still a Gazetted Officer in the service of the Government of India•K so, from what date?

(2) Whether respondent no, 1 held herself our as a candidate fromany date prior to 1st February, 1971 and if so, froin what date?

(3) Whether Yashpai Kapur continued to be in the service of Govern*ment of India from and after 14th January, 3971 or till which date?

During the pendency of the election petition in this Court, the Parlia-ment amended section 77 of the Representation of the People Act byOrdinance No. XIII of 1974, which has now been replaced by Act No. 58

•Of 1974. The petitioner has filed Writ Petition No, 3761 of 1975, challengingths vires of the Amending Act, and that writ petition has been connectedwith the present election petition. The writ petition can have a bearingonly on issue no. 9. I shall, therefore, address myself on the contentions

58 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [V 0 L- LVII

raised on either side in the writ petition while dealing with issue no. 9.The respondents impleaded in the writ petition are the Union of India andSmt. Indira Nehru Gandhi (respondent no. 1 in the election petition).

FINDINGS

Issue no. 2

It is the admitted case of the parties that on 1st of February, 1971the respondent no. 1 travelled by an I.A.F. plane from Delhi to Lucknow,from there she went by car to Rae Bareli and that besides filing her nomi-nation paper at Rae Bareli, she also made election speeches at variousplaces in her constituency. It is also not disputed that on 24th of February,1971 the respondent no. 1 went by an I.A.F. helicopter from Delhi toGonda, from where she went by car to Rae Bareli (via Unnao andLucknow), reaching Rae Bareli on 25th February, 1971 ; and thai on thesaid date she also delivered election speeches at various places inside herconstituency. According to the allegation contained in the petition, therespondent no. 1 thereby procured the assistance of members of the ArmedForces of the Union for furthering th1 prospects of her election, whichis a corrupt practice under section 123(7) of the Representation of thePeople Act.

At the time of argument learned counsel for the petitioner statedthat since on 24<h February, 1971 the respondent no. 1 travelled by anI.A.F. helicopter to Gonda, it is possible to contend that the said journeywas made by the respondent for party work and not to further her ownelection prospects and, consequently, the fact of the respondent no. 1 usingan I.A.F. helicopter on 24th February, 1971: can be excluded from consi-deration under this issue. Learned counsel, however, stressed that thejourney made by the respondent no. 1 on 1st of February, 1971 by anI.A.F. plane from Delhi to Lucknow was to enable her to file her nomina-tion paper at Rae Bareli and to deliver election speeches in her constituencyand. consequently, that should constitute a corrupt practice under section123(7) of the Act :—

The contention of the respondent no. 1 in reply thereto is two-fold :—-

(a) that the respondent no. 1 on her election agent did not solicit,require or order the use of the Air-force plane, [para I2{d) of thewritten statement], and

(b) that in view of the Pillai Committee Report, and the Office Memo-randums issued on its basis from time to time, the Governmentsprovided an aeroplane for her journey as part of their normal'duty and, consequently, the fact of the respondent having travelledby an I.A.F. plane from Delhi to Lucknow on 1st February, 1971,cannot constitute a corrupt practice.

Now, so far as the first part of the contention is concerned, it is notpossible to accept it. The Office Memorandum, dated 17th August, 1968(Exh. 126) was issued when the respondent no. 1 was the Prime Minister.This Office Memorandum was also operative on 1st of February, 1971,when the impugned flight was made by the respondent no. 1. Under thisOffice Memorandum, read along with the previous Memorandums, and thePillai Committee Report, the respondent no. 1, as Prime Minister of thecountry, was entitled to make use of an I. A. F. aircraft while travellingfor non-official purposes as well. In answer to interrogatory no. 24 it wasadmitted on behalf of the respondent no. 1 that she was aware of the

EL.R. ] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 59

existence of the Government Order and the substance thereof. Even duringher deposition in Court the respondent no. 1 admitted that when thePrime Minister goes on an election tour, a plane of the Indian Air Forceis put at her disposal and that such plane is flown by members of theIndian Air Force. The respondent no. I further admitted during her depo-sition that though the tour programmes concerning the party work are sentby the All India Congress Committee, they are finalised after her approvalis obtained. According to Sri Seshan (P. W. 53*, Private Secretary to therespondent no. 1, instructions are sent from the Prime Minister's Secretariatto the Air Headquarters Tor arranging for an I. A. F. aeroplane for thetour of the Prime Mid-'er, even when the tour is non-official, and it is thenthe duty of the Air Headquarters to arrange for the same. Wing CommanderK. G. Mohan Ownd (?. ^ \ 49), Dcp;:'v; Dirfc'.or. Air Traffic Control andCo-ordinating Officer, V. 1.1'.'s. Air Headquarters slated duriag his cross-examination made on behalf of the respondent no. 1: —

"It is correct that on receipt of the 'our programme of the Prim?Minister- it is my duty to arraag" for ihc aircraft according io herprogramme on the basis of '-he Standina Order of the Governmentof India."

Slues ths tour programme is sent from the Secretariat of respondentno, 1, after her approval is obtained, since the re-poadent no. 1 as PrimeMinister tull well knew that thereafter ii w:is the duty of the Air Head-quarters to place a plane at her disposal, there is no escape from the conclu-sion that, by sending the tour programmes to the Air Headquarters, therespondent no. 1 required an I. A. F. plane being placed at her disposal.The fact that the respondent no. 1 did not require any particular planebeing placed at her disposal is not material. It may not be out of placeto add here that in answer to interrogatory no. 27 the respondent no. 1admitted that the aircraft and helicopter used by her on 1st February, 1971and 24th and 25th February, 1971, were flown by members of the AirForce. During her deposition in Court also she stated that when sheboarded the plane on 1st of February, 1971, in order to make her journeyfrom Delhi to Luckaow, she was aware that Jhe plane was to be flownby the members of the Indian Air Force.

It should, therefore, be accepted that a plane of the Indian Air Force,manned by Armed Forces of the Union, was placed at the disposal of therespondent no. 1 on 1st of February, !97i at her instance for her flightfrom Delhi to Lucknow and the respondent no. 1 thus did obtain theassistance of the members of the Armed Forces of the Union, who consti-tuted fir crew on the I. A. F, plane.

This lakes me to the sscord limb of \h: con'enijon raised on behalfof the respondent no. 1, namely, whether the aforesaid assistance of theArmed Forces of the Union was obtained by the respondent no. 1 infurtherance of her election prospects, or the Government placed the planeat her disposal as part of -heir norm?.! duty in. view of the Filial CommitteeReport and the Office Memorandums issued on the basis thereof.

It will be convenient first 'o refer to the Pillai Commit s:c Report andthe Office Memorandums issued on the basis thereof.

A copy Of the Pillai Committee Report has been filed by Sri V.Srikantan "(R.W. 4). Deputy Secretary, Ministry of Defence, Government ofIndia. It is Exh. A-22 on "record and is dated 17th October. 1971. In para12 thereof it is stated:


"The position of the Prime Minister is for a different reason alsospecial. Whether at headquarters or away from it in camp orin transit, the disposal of public business must have first claimon his time and attention. It is, therefore, clearly in the publicinterest to ensure that when he goes on tour the arrangements forhis travel are such as would eliminate the long irritating delayswhich, depended on normal modes of public transport, inevitablyentails. It is equally necessary to ensure that during the journeyadequate facilities are provided for him for the transaction ofofficial business. For these as well as security reasons which areno less important, we consider that the Prime Minister should usethe I. A. F. aircraft for all journeys by air."

In para 13 of the interim report it is said that there may be occasions'when the object of a journey undertaken by the Prime Minister may beprominently connected with the work relating to the party of which he isa leader'.

In para 14 of the interim report the Committee examined as to or.what terms the I.A.F. aircraft may be employed on journeys undertakenby the Prime Minister otherwise on official duty.

It will thus transpire on a perusal of the interim report of the FilialCommittee that, while referring to the unofficial tours to be made by thePrime Minister by the I.A.F. Aircraft, the Committee had in mind, in allprobability, the work relating to the party of which the Prime Minis'erhappens to be the leader, and not the work exclusively and personallyrelating to the Prime Minister.

On 20th October, 1951 the Ministry of Defence issued a press note(Exh. A-23) on the basis of the interim report of the Piilai Committee.After highlighting what was stated in the interim report of the PiliaiCommittee about the desirability of the Prime Minister travelling by anI. A. F. aircraft, it sfaied: —

"The Prime Minister, in his capacity as the leader of his politicalparty, recently had, and will in future continue to have, occasionto undertake journeys by air for other than official purposes. Thenature of the journey on such occasions is different from normalofficial tours, but the Prime Minister cannot on this account divesthimself, for the period of the journey, of his position and respon-sibility as head of the Government. The business of the Govern-ment never comes to stand still and the Prime Minister is neveroff duty. Whatever the character of the journey performed byhim. the r.eed for eliminating delays in travel, for providing faci-lities for the transaction of official business during the journey andfor making suitable security arrangements remains unchanged. Itis. therefore, desirable that, even for journeys by air for other thanofficial purposes, tha Prims Minister should, as far as possible,travel by I. A. F. Aircraf."

From the underlined portion occurring m the aforesaid press note itwill appear that even in this press no'e, while referring to the- non-officialtours, what the Ministry of Defence had in its mind were the tours madeby the Prime Minister in his capacity as the leader of his party.

Exh. A-24 is the final report of the Pillai Committee and is dated 20thMay, 1953. It only refers to its interim report, so far as the use of theI.A.F. Aircraft by the Prime Minister is concerned. Exh. 126 is the Office

E-L.R-] SHRI RAJ NARA1N V. SMT. INDIRA GANDHI 61

Memorandum dated 17th August, 1968, which was issued in supersessionof the previous Memorandums (which it is not necdisary to refer) Para U(d)thereof reads as follows: —

"The aircraft of the V. I. P. flight are to be used on official duty only.In the case of the Prime Minister, it is necessary that, even onoccasions when he/she has to undertake journeys mainly forreasons other than official duties, he or she would be able totravel by I. A. F. Aircraft for the due performance of his/herduties as the head of the Government as'well as for reasons ofsecurity."

A cumulative reading of all the aforesaid papers gives an impressionthaf, while referring to noii-oScial purposes, what was" conceived was thework of the party to which fhe Prime Minister belonged and not the workrelating exclusively to the Prime Minister.

Assuming, however, that the flights for ne-u-official purposes, referredto in the interim report of the Pillai Committee and the Office Memoran-dums, also included flights made by the Prime Minister for works exclu-sively relating to him, it cannot be ignored that the interim report of thePillai Committee had an advisory nature and ths press note and OfficeMemorandums relied upon by the respondent are mere administrative orders.Nothing contained therein can reader the provisions contained in the Re-presentation of the People Act nugatory. If a Prime Minister used the I.A.F.Aircraft for official purposes, obv'.ously such use ca-.-.not be in conflict withsection 123(7) of the Representation of the People Act. Similarly, if aPrims Minister used the 1. A. F. Aircraft for the political work of the party,that too will not be in conflict with the aforesaid provision contained inthe Representation of the People Act, If, however, the Prime Minis'eruses an aircraft exclusively for the purposes of frequently flying to his/hercoii?tituency during the period of his/her election with the sole purposeof doing election propaganda, it has the potentiality of violating the pro-vision contained in section 123(7) of Representation of the People Act, for,by making use of the I .A.F. Aircraft for frequently flying into his/herconstituency as a candidate he/she avails of the means for quick andspeedy movement in his/her election campaign. The aircraft being man-ned by the Armed Force of the Union, the n-.e 'hereof under such circum-stances can fall within the mischief of section 123(7) of the Act. Neitherthe interim Pillai Committee Report nor the Office Memorandums referredto by respondent no. 1 can under such circumstances salvage the position.

Learned counsel for respondent no. 1 referred me to Article 298 ofthe Constitu'ion and urged that it was within the executive power of theUnio^ to establish a commercial wing of the I.A.F. Aircraft for the exclu-sive tue of the Prime Minister and~a couple of other dignitaries of theGovernment. Learned counsel pointed out that according to Office Memo-randum, dated 3rd December, 1951 (Exh. 125) a? well as Office Memo-randum, dated 17th August. 1968 (Exh. 126) fare for the air journeys madeby the Prime Minister for other than official purpor.es was recoverable atthe rate specified in the said memorandums, and it should, therefore, beaccepted that, while permuting the use of the I. A. F. planes by the PrimeMinister for other th-.'.n official purposes, the Union in exercise of its exe-cu'ive power established a commercial wing of the T. A. F Aircraft for theuse of the Prime Minister. Learned counsel for respondent no. 1 urgedthat, in that view of the matter, the use of the I. A. F. Aircraft by thePrime Minister for any purpose whatsoever cannot be violative of section•123(7) of the Representation of the People Act. I have given my careful


thought to the argument raised, but I am unable to accept it. It is truethat under Article 298 of the Constitution, the Union can, in exercise ofits executive power, indulge in commercial activities and it can while doingso also establish air service. That should, however, be an independentservice open to all and sundry. Permitting the use of the I. A. F. Aircraftto the Prime Minister only for non-official purposes on payment of certainfare cannot be cons "rued as establishing a commercial wing of the AirForce by the Un;on in e>;ercise of its executive power under Artie1,; 298of the Constitution. It o"!y means extending a special nriv'lege 'o thePrime Minister. Article 2°3 of the Con'ti'u-.ion e n have no applicationto it.

Learned course] for re:poi;dont no. 1 ilv;n referred ins to the FullBench decision of the Delfr High Court in \ho case Prekaskvr Shasir: andothers versus Vnion of Ind.a and others (A.LR. 1974 Delhi 1) and u^edthat the vaiid:;v of the O'-ice Memorandum da'ed 17ih of August. 1968has "been uphe-d i:.i that case. The validity of the said memorandum inthat case, hov,:ev?r. wa" ^xr.'nfned vis-a-vis Article 14 of the Consti'-iiionand not vis-a-vis any provision con'ained in the Representation of thePeople Act. The ca-e referred to by learned counsel for the respondentno. 1 lias, therefore:, no bearing on the poiiU in r.sue before me and, ccvise-quently, no reliance can be placed by the respondent no. 1 on that decision.

The question that, however, a'-'ll remains U> be considered i; whetheron the facts of this case it can be said that, in obtaining the sevice? ofthe Armed Forces of the Union, who manned the Aircraft by which 'he-respondent no. 1 travelled on 1st of February. 1971 from Delhi to Lucknow,she obtained their assistance for the furtherance of her prospects in theelection.

The petitioner filed copies of some tour programmes of the respondentno. 1, besides examining Wing Commander K. G. Mohan Chand (P.W. 49),.who filed office copy of the bill relating to the fright made bv respondentno. 1 on 1st of February, 1971 from Delhi to Lucknow. On the basisthereof the petitioner sought to make out that the said flight was mad; byrespondent no. 1 only to reach Rae Bareli to file her nomination paper anddo her election propaganda. A perusal of the record, however, revealsthat factually it was not so. The petitioner himself filed copv of a letter.dated 27th January, 1971 (Exh. 27) from the Under Secretary, U.P. Gov-ernment to the District Magistrate, Lucknow, the District Magistrate,.Rae Bareli, the Estate (D-Ticer. Lucknow, fe Commissioner, Lucknow nndthe Inspec'or-General of Police, Lucknow. Along with this letter is annexeda copy of the tour programme of the respondent no. 1. A perusal of this tourprogramme shows that OR the 2nd of February, 1971, on her return fromRae Bareli to Lucknow, the respondent no. 1, waj to fly by the I. A. F.Aircraft to Panagarh. Sri N. K. Seshan (P. W. 53). Private Secretn-v tothe Prime Minister, produced in Court a file which, inter alia, contained*the bill for the ron-o'Sda] journeys mode bv the respondent no. 1 h theI. A. F. Aircraft from 3 s* of February. 1971 to 7th of Februarv. 1971.Sri Seshan stated that this bill was prepared bv his office on the basi-- ofthe bill received from the Air Headqunr'ers. These bills were flru^-ed bySri Seshan as 'B' and 'X' respectively. It is true that these bills were notgot marked as exhibits. The* fact, however, remains 'hat the file was pro-duced in Court in the presence of counsel for the petiMon?r and coim-elfor the resoondent no. "1 and Sri Seshan made the required statement mregard to those bills. Consequently, there can be no valid objection toreference being made to those bills. That part, Raj Kumar Singh (P.W. 56)..-

E.L.R.] SHRI RAJ NARA1N V. SMT. INDIRA GANDHI 63

In-Charge, Legal Affairs Department and Assistant Secretary, Parlia-mentary Affairs of All India Congress Committee, also produced in Courta file containing the tour programme of the respondent no. 1 for the periodfrom 1st of February 1971 to 7th of February, 1971. That tour programmewas admitted by the respondent no. 1 and got formally exhibited in thecase (Exh. A-64). The aforesaid documents clearly revealed that on 1stof February, 1971 the respondent no. 1 set out from Delhi on an extensiveelection tour of the country, visiting a number of places, including Luck-now, Panagarh, Shantiniketan, Serampur, Kaikunda, Calcutta. Behrampur.Krishna Nagar, Teetagarh, Gauhati, Agartala, Kigram, Silchar, Mohanbari,Rawriah, Roopsi, Kooch Bihar, Pumea, Raiganj and Malda. Since therespondent no. 1 had to file her nomination paper at Rae Bareii aurimi thesame period, she landed at Lucknow and drove from there to Rae Barelifor that pu'pos;. Alter ti'mg her iionihiatio" paper and delivering a fewspeeches, both inside and outside her constituency, she came back tot.ucknow to resume her flight onwards on her election tour.

In the context of the aforesaid facts, it cannot be held that by flyingin the I. A. F. Aircraft on 1st of February, 1971 the respondent no. 1obtained the assistance of the Armed Forces of Union for furtherance ofher prospects at the election.

Learned Counsel for the petitioner urged that mens rea is not anecessary ingredient of the corrupt practice uader section 123(7) of theRepresentation of the People Act. It was stressed by him that the flightmade by the respondent no. 1, in so far as it extended between Delhi andLucknow, was connected with the respondent no. 1 filing her nominationpaper at Rae Bareli and doing election propaganda. Learned counselfurther urged that it is immaterial whether the respondent no. 1, whiletravelling by the I. A, F. Aircraft from Delhi to Lucknow, did or did notintend to further her election prospects thereby. According to learnedcounsel, once it is shown that the flight had facilitated the filing of thenomination paper by the respondent no. 1 at Rae Bareli and doing forelection propaganda, she must be held guilty of corrupt practice undersection 123(7) of the Act. In support of his argument regarding means rea,learned counsel referred me to the decision of the Supreme Court in thecase Dr. Y. S. Parmar v. Hira Singh (A.I.R. 1959 Supreme Court 244).

I have, however, already stated that the flight made by the respondentno. 1 from Delhi to Lucknow was not connected with her filing of nomina-tion paper or with her doing election propaganda in her constituency. Asalready stated earlier, on 1st of February, 1971 the respondent no. 1 hadset out on a general election tour of the country. Since, however, she hadalso to file her nomination paper at Rae Bareli during the same period,she landed on way at Lucknow and then drove to Rae Bareli for thatpurpose. Having reached .there she also delivered a few speeches. Itcannot, therefore, reasonably be said that the use of the I.A.F. Aircraftwas directly connected with her election work. As for the case referredto by learned counsel for the respondent no. 1, it cannot be ignored that itrelated to utilising the services of a personnel of the Armed Force; aspolling agent. Clause (2) of Explanation 1. appended to section 123(7) ofthe Representation of the People AC. as it then existed, stafed. that forthe purposes of sub-clause (7) a person shall be deemed to assist in the,furtherance of the prospects of a candidate's election, if he, inter alia, actsas a polling agent of that candidate. It was in that context that the SupremeCourt said that the question of mens tea was not relevant. That observationcannot have an universal application. It was so pointed out in the case BabuBhai Ballabh Das Gandhi v. Pilloo Homi Mody (36 Election Law Reports,

S H R I R A J NARAIN V. SMT. INDIRA GANDHI [VOL. LVII

For the reasons stated above, / find that, on the basis of the respon-dent no. 1 having flown in an I.A.F. Aircraft from Delhi to Lucknow onlut of February 1971, she cannot be held guilty of having obtained theassistance of the Armed Forces of the Union for furtherance of her electronprospects and thereby of having committed a corrupt practice under sec-tion 123(7) of the Representation of the People Act.

Issue no. 2 is accordingly answered against the petitioner and in favourof respondent no. 1.

Issue no. 3In para 9 of the petition it is alleged that the respondent no. 1 and

her election agent obtained and procured the assistance of the GazettedOfficers and members of the Police Force in the service of the Governmentfor furthering the prospects of her election. Further clarifying the allega-tion, it is'stated that the services of the District Magistrate of Rae Bareli,the Superintendent of Police. Rae Bareli, and the Home Secretary, U. P.Government were utilised by the respondent no. 1 on 1st of February, 1971and 25th of February. 1971 for the construction of rostrums, for erectionof barricades, for making arrangements of loudspeakers at the places ofthe meetings, and for posting police along the route by which the res-pondent no. 1 was to travel. According to learned counsel for the petitioner,this amounted to a corrupt practice under section 123(7) of the Represen-tation of the People Act.

The respondent no, 1 in her written statement denied that either sheor her election agent obtained the aforesaid assistance of the DistrictMagistrate. Rae Bareli, the Superintendent of Police. Rae Bareli and theHome Secretary. U. P. Government. She admi-ted that rostrums wereconstructed at some places where she addressed the meetings. She, however,added [in para 13 (k) and 13(1) of the written statement] that the rostrumswere consfrycted by private contractors under the direction issued by theState Government and that none of the Gszet^ed Officers of the State Gov-ernment, mentioned in para 9 of the petition, w'ierein any manner con-nected with the co-struetion thereof. Erection oF barricades and posting,of police was not. denied by the respondent. With regard to the loud-speakers, the respondent pleaded that they were arranged by the DistrictCongress Committee. The respondent then referred to the instructions issuedby the Comptroller and Auditor- Genera! of India on 29th November, 1958(Exh. 120) sad to t^e letter of the Government of India dat?d 12th ofJanuary. 1959 (Exh. 124) and beaded that the aforesaid arrangements weremade by the Government on 'i's own initiative in the discharge of theirGovern mental duties and by the officers of the Government in the dischargeof their doty.

The ffct that rostrums were got constructed and barricading was gotdone by tV>e"Surenriteiidest of Police. Rae Bareli, i= supponed by a massof documentary evidence, besides oral evidence. Exh. 148 is the letterdated 31st March, 1973 from "he U P . Police Headquarters Allahabad,to the Deputy Secretary. Home Department It clearly states that fiveros tm-s were constructed for the meetings addressed by the respondent

E.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 6 5

and a cost of Rs. 490 was incurred in transporting the prefab, rostrumfrom Allahabad to Rae Bareli. Exh. 149 is the letter dated 2nd February,1973 from the Superintendent of Police, Rae Bareli, to the U. P. PoliceHeadquarters, Allahabad, containing the same information. Exli. 154 isa letter dated 1st of February, 1972 sent by the Superintendent of Police,Rae Bareli to the U. P. Police Headquarters, Allahabad, containing thedetails of the expenditure incurred in connection with the arrangementsmade on 1st of February, 1971. This also shows that a sum of Rs. 85000was incurred in the construction of rostrums and a sum of Rs. 490 wasincurred in connection with the transporting of the prefab, rostrum andbarricade. It is not necessary to mention here other details of expenditurecontained in this letter. Exh. 185 is a radiogram, dated 26th January, 1971sent by the Superintendent of Police, Rae Bareli to the U. P. Police Head-quarters, Allahabad soliciting sanction for the construction of rostrums andbarricades through the P. W. D. Exh. 184 is the radiogram, dated 28thJanuary, 1971, according sanction for incurring expenditure on barricadingand construction of rostrums through the P.W.D. Exh. 186 is the copyof a letter dated January 26, 1971 sent by the Superintendent of Police,Rae Bareli to the Executive Engineer, P. W. D., Rae Bareli apprising himthat the respondent no. 1 would be addressing meetings at seven placesspecified in the letter and that all the meetings, except one, shall requireconstruction of rostrums and barricades. Exh. 156 is the letter, dated4th January, 1972, sent by the Superintendent of Police, Rae Bareli, to theoffg. Executive Engineer, P. W. D., Rae Bareli, acknowledging receipt ofbills for construction of barricades and rostrums at the seven places speci-fied therein and requesting the Executive Engineer to submit separate billsfor barricading and construction of rostrums. Exh. 155 is the letter dated1st of February, 1972 from the Executive Engineer P. W. D., Rae Barelito the then Superintendent of Police, Rae Bareli, enclosing therewith sepa-rate bills of expenditure incurred in erection of in barricades and rostrumson the occasion of the visit of respondent no. 1 on 1st of February, 1971.

It is not necessary to refer to the other papers. The aforesaid docu-ments overwhelmingly show that rostrums were got constructed throughGovernment agency for the purposes of the meetings addressed by therespondent no. 1 in Rae Bareli on 1st ofi February, 1971.

Exh. 199 is a radiogram, dated 17th of February. 1972 from theSuperintendent of Police, Rae Bareli to the U. P. Police Headquarters,Allahabad, soliciting sanction for construction of rostrums and barricadesfor six meetings to be addressed by the respondent no. 1 on 25th ofFebruary, 1971. Exh. 201 is the letter dated 17th February, 1971from the Superintendent of Police, Rae Bareli, to the Executive Engi-neer, P. W. D., Rae Bareli, apprising him of the places where therespondent No. 1 was to address meetings on the 25th February,3971. . and requesting him to take up the construction of rostrumsand barricades on top priority basis, to be completed by 22nd of February,1971. Exh. 193 is a letter dated 23rd June, 1971 sent by the Superinten-dent of Poljce, Rae Bareli to the U. P. Police Headquarters, Allahabad,apprising him, inter alia, of the cost incurred in the construction of barri-cades and rostrums in connection with the meetings addressed by therespondent no. 1 on 25th February, 1971. Exh. 190 is the letter, dated27th September, 1972 sent by the U. P. Police Headquarters to the DeputySecretary, U. P. Government, Home and Police Department, apprising theGovernment of the cost incurred over the construction of rostrums andbarricades in connection with the meetings addressed by respondent no. 1in Rae= Bareli, on 25th of February, 1971. It is conclusively proved by

6 6 S H RI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVII

these documents that rostrums were constructed through Governmentagency for the meetings addressed by the respondent no. 1 in her consti-tuency on 25th of February, 1971 also.

Learned counsel for the petitioner also referred me to the evidence ofSri E. Lawrence, the then S.D.M., Dalman (district Rae Bareli) (R. W. 10)and to the evidence of Sri Mohinder Singh, District Magistrate, Rae Bareli(R. W. 36) in order to show that rostrums for the purposes of the meetingsof the respondent no. 1 were always got constructed through officers.Sri E. Lawrence (R. W. 10) stated during his deposition that barricadingand construction of rostrums are done by the P. W. D. and payment forthe same is made by the Superintendent of Police of the district concerned,though the actual wort of putting up of barricades and construction ofrostrums is done by the contractors. Further on, he stated in cross-exami-nation that it was the duty of the Sub-Divisional Officer to make sure thata rostrum was constructed at the place in his sub-division where the PrimeMinister proposed, to address the meetings. He also stated that theSuperintendent of Police and the District Magistrate ask the Public WorksDepartment to get the rostrum constructed at the place where the meetingis proposed to be addressed by the Prime Minister and that the S. D, O,personally goes to that place to supervise the construction of rostrums.During his re-examirsaiion by learned counsel for the respondent no. 1 hsaffirmed that he had personal knowledge regarding the rostrum and barri-cade constructed in connection with the meeting addressed by the respon-dent no. 1 at Rae BareSi on 1st of February. 1971 because he knew theAssistant Engineer who got it done and because he had himself seen therostrum being constructed and the barricade being put up. Sri MohinderSingh (R.W. 36) was the District Magistrate at Rae Bareli during theelection that took place in 1971. He stated, "whenever the tour programmeof the Prime Minister is received, whether the visit is official or un-official,they inspect the site of the meeting to be addressed by the Prime Ministerand the Superintendent of Police then, besides making other securityarrangements, sends a letter to the Executive Engineer, Public Works De-partment to invite tenders for construction of rostrums and barricades"He further stated that if a rostrum is constructed, barricading is also donebecause it is a part of that work.

There is thus not an iota of doubt that it were the Gazetted Officersof the State, particularly the Superintendent of Police, Rae Bareli and theExecutive Engineer, P. W. D., Rae Bareli, who got the rostrums constructedfor the purposes of the meetings addressed by the respondent no. 1 in herconstituency on 1st of February, 1971 and Z5th of February, 1971.

As for the arrangement of loudspeakers, no evidence, oral ordocumentary, has been led by the petitioner in order to prove that arrange-ment for loudspeakers was done by or through the Government officers.On the contrary, there are some papers which lend support to the con-tention raised on behalf of respondent no. 1 that the arrangement of loud-speakers was done by the District Congress Committee. Exh. 177 is aletter dated 29th January, 1971, sent by the Superintendent of Police,Rae Bareli to Sri Gaya Prasad Shukla of the Central Congress Office,Rae Bareli! It states that, according to the verbal decision reached bet-ween them Sri Gaya Prasad Shukla, was to make arrangements of loudspeakers for the meetings of the respondent no. 1. The letter being datedJanuary 29, 1971, it obviously refers to the meetings addressed by therespondent no. 1 on 1st of February, 1971. Exh 193 is a letter datedJune 23 1971 from the Superintendent of Police, Rae Bareli, to the U.P.

E.L.R.] SHRI RAJ NARASN V. SMT. INDIRA GANDHI 6 7

Police Headquarters, Allahabad, containing details of the expenditureincurred in connection with the visit of respondent no. 1 to Rae Bareli on25th of February, 1971. It explicitly states that no expenditure was incurredin connection with the arrangement of loudspeakers for the meetings addres-sed by ihe respondent no. 1 as the same was arranged by the partyconcerned.

Learned counsel for the petitioner, however, contended that eventhrough the loudspeakers were not arranged by the Government officers forthe purposes of the meetings addressed by the respondent no. 1 in herconstituency, there is un-impeachable evidence on record to show that theGovernment officers arranged for supply of power for the functioning ofthe loudspeakers at some places where the respondent no. 1 addressed herelection meetings. This appears to be correct. Exh. 147 is copy of a letterdated 24th July, 1973 sent by the Superintendent of Police, Rae Bareli tothe President, U. P. C. C, Lucknow, stating that the respondent no. 1 hadaddressed meeting at Harchandpur, Jagatpur, Parewa and Reohara (be-sides Bachrawan, which was not in Rae Bareli constituency), in connectionwith the election, on 1st of February, 1971, that puwer had been suppliedfor functioning of loudspeakers in those meetings, and that five bills for atotal amount of Rs. 1,151 were sent for payment in that connection to theU. P. C. C. Office. It was requested that the payment may be expedited.Exh. 146 is the letter da?ed 1st September, 1973 from :he President,U. P. C. C. to the Superintendent of Police, Rae Bareli. which indicates thata cheque for Rs. 1,151 was forwarded fay the U. P. C. C. in payment ofthe aforesaid bills for supply of power. Exh. 154 is a copy of the letterdated 1st of February, 1972 from the Superintendent of Police, Rae Barelito the Police Headquarters, Allahabad containing a break-up of the ex-penditure incurred in connection with the visit of respondent no. 1 toRae Bareli on 1st of February, 1971. This also lends support to the factthat arrangement for supply of power for functioning of the loudspeakersat some meetings addressed by the respondent no. 1 was made through theGovernment officers. Exh. 178 is a letter dated January 29, 1971, fromthe Superintendent of Police, Rae Bareli, to the Assistant Engineer, Hydel,asking him to make available power at Harchandpur and Jagatpur forinstallation of public address system for the meeting of the respondent no. 1on 1st of February, 1971.

The abovementioned papers conclusively prove that arrangements hadbeen made by the Government officers for supply of power for the func-tioning of the loudspeakers at some of the election meetings addressed bythe respondent no. 1. But for the same, it would not have been possiblefor the respondent no. 1 to effectively address these meetings.

The fact that police had been posted along the routes by which therespondent no. 1 had to travel and that the police was also posted at theplaces where the respondent no. 1 addressed election meetings had notbeen controverted by her. As also stated earlier, the erection of barricadesalong the routes and erection of barricades at the places of meetings wasalso not denied by her. According to respondent no. 1. the aforesaidarrangements were made by the State Government in discharge of itsGovernment duties.

It is a matter of common knowledge that on the occasion of the visitof the Prime Minister of the country vast crowds gather in order to see andhear him/her. People also swarm along the routes by which he/shetravels in order to have a glimpse of him/her. It is the first duty of every


Government to maintain law and order in the State. If the police werenot posted and barricades were not put up along with routes by whichthe respondent no. 1 travelled as also at the places where she addressedthe meetings, it may not have been possible for the Government to controlthe crowd. Failure in that regard could lead to a law and order situationand no Government worth the name can take any risk in that regard.Needless to say that neither the posting of the police along the routes andat the places of the meetings, nor the erection of the barricades at the twoplaces could contribute to the furtherance of the prospects of the respondentno. 1 in the election. Exception cannot therefore validly be taken by thepetitioner in regard to the said arrangements made by the Government.I am accordingly in agreement with the plea put forward by the respondentno. 1 that the posting ofi_ police along the routes and at the place of themeetings as well as the setting up of barricades at the two places was doneby the Government in discharge of its Governmental duties.

The construction, of rostrums and the supply of power by or .throughthe officers of the State Government, however, stand at a different footing.The rostrums constructed by the officers of the State Government enabledthe respondent no. 1 to address her meetings from a dominanting position.The resources of the Government having been employed, the rostrums weregot constructed in the shortest possible time so that they were ready by thetime the respondent no. 1 reached the places where she had to address themeetings. Further, even though the loudspeakers had been arranged by theDistrict Congress Committee, supply of power for the same was arrangedby the officers of the State Government. But for it the loudspeakers wouldhave been ineffective and it would not have been possible for the respon-dent no. 1 to make her speech audible to the entire audience. The construc-tion of the rostrums and the arrangement of the supply of power for thefunctioning of the loudspeakers, therefore, amounted to assisting the respon-dent no. 1 in her election campaign which put her in a clearly advantageousposition over her opponents. I do not think it was indispensable for the-State Government for maintenance of law and order, or security^ that its-officers should have taken upon themselves to get rostrums constructed forthe meetings of the respondent no. 1 and to make arrangements for thesupply of power for the functioning of the loudspeakers at her meetings.Both the things could be left to be arranged by the political partyconcerned.

Reliance has been placed by learned counsel for the respondent no. 1on the Instructions (Exh. 123) dated 29th1 Novemebr, 1958 issued by theComptroller and Auditor General of India to the Accountant Generals ofthe State, the letter dated 12th.of January, 1959 (Exh. 124) issued by theGovernment of India to the Chief Secretaries of all State Governments,enclosing therewith copy of the Instructions issued by the Comptroller andAuditor General and the letter dated 19th November, 1969 (Exh. 121) issuedby the •Government of India, Ministry of Home Affairs to all State Gov-ernments, in order to contend that it was the duty of the State Governmentand its officers to arrange, inter alia, for the construction of "rostrums andfor putting up of public address system in the meetings addressed by thePrime Minister. Now, so far as the secret instructions (enclosed with Exh..124) issued by the Comptroller and Auditor General of India are concerned,it is not explicity stated therein that those instructions will also apply onthe occasion of the election meetings addressed by the Prime Minister asa candidate within her own constituency. It is worthy of notice that in theBlue Book (which contains detailed instructions regarding security arrange-ments of the Prime Minister) election meetings were specifically excluded'.

E.L.R.] SURI RAJ NARAIN V. SMT. INDIRA GANDHI 6 9

This is apparent from the first paragraph of the letter (Exh. 121) issued bythe Ministry of Home AffaiUs, Government of India, on 19th November,1969. Learned counsel for the petitioner also produced before me LokSabha Debates dated April 18, 1973. Rule 71 (6) of the Blue Book, asit originally existed, has been reproduced in Column 241 of these Debatesas follows:

"It has been noted that the rostrum arrangements are not always pro-perly made because the bosts are sometimes unable to bear thecost. As the Prime Minister's security is the concern of the State,all arrangements for putting up the rostrum and the barriers atthe meeting place will be borne by the State, whatever may be theoccasion for which the public meeting is called, except electionmeetings."

Now, if the instructions issued by the Comptroller and Auditor Generalof India in 1958 were read with rule 71(6) of the Blue Book, as it originallyexisted, it becomes abundantly clear that the instructions contained thereindid not apply to election meetings, much less to the meetings addressed bythe Prime Minister as a candidate in her own constituency.

Rule 71(6) of the Blue Book was amended in 1969, as is apparent fromthe letted Exh. A-21 dated 19th November, 1969 issued by the Governmentof India to all State Governments. The relevant part of amended rule (6)reads as follows:

"It has been noticed that the rostrum arrangements are not always pro-perly made because the hosts are sometimes unable to bear thecost. As the security of the Prime Minister is the concern of theState, all arrangements for putting up the rostrum, the barricadesetc. at the meeting place, including that of an election meeting,have to be made by the State Government concerned."

It was thus for the first time in 1969 that arrangements pertaining toelection meetings were also made the responsibility of the State Government.It is, however, extremely doubtful whether even the amendment of rule 71(6)of the Blue Book in 1969 required the State Govrnment and its officers tomake arrangements for rostrums and loudspeakers at the meetings which thePrime Minister was to address in his/her own constituency as a candidate.Assuming, however, that it did it cannot be ignored that the instructionsissued by the Comptroller and Auditor General of India (enclosed withExh. 124) and the instructions contained in the letter of the Government ofIndia, dated 19th November, 1969 (Exh. A-21) are instructions of adminis-trative nature and they cannot override the provisions contained in section123 of the Representation of the People Act. Consequently^ if it is shownthat the construction of rostrums and arrangement for supply of power forthe functioning of the loudspeakers at the meetings.addressed by the respon-dent no. 1 falls within the mischief of section 127(7) of the Representationof the People Act, neither the instructions issued by the Comptroller andAuditor General of India nor the instructions issued by the Governmentof India through its letters.dated 12th of January, 1959 (Exh. 124) and 19thNovember, 1969 (Exh. 121) can, come to the fescue of the respondent no. 1.

The question that, therefore, ultimately falls for consideration is whetherthe fact that rostrums had been got constructed and supply of power for thefunctioning of the loudspeaker was artanged by the Gazetted Officers of theState Gbvefnrneit, particularly the Superintendent of Police, the ExecutiveEngineer, P.W.D. and the Engineer, Hydel Department, for the meetings



addressed by the respondent no. 1 as a candidate in her constituency bringsthe matter within the mischief of section 123(7) of the Act.

Sub-section (7) of section 123 of the Representation of the People Actreads as follows :

"The obtaining or procuring or abetting or attempting to obtaia orprocure by a candidate or his agent, or, by any other person withthe consent of a candidate or his election agent, any assistanceother than the giving of vote for the furtherance of the prospects ofthat candidates' election, from any person in the service of theGovernment and belonging to any of the following classes,namely—

(a) Gazetted Officers ;

(b) *

(c) * * •

(d) * * *

(«) *

(/) * * * "

In the light of the above provision, the first question that arises forconsideration is whether on the facts found proved it can be said that theassistance of the Gazetted Officers of the State was obtained or procured bythe respondent no. 1.

The words 'obtain' and 'procure' imply some initiative or effort on thepart of the returned candidate. According to Webster's New InternationalDictionary, the word 'obtain' means to take hold of, to gain or attain poses-sion or disposal by some planned action or method. The meaning assignedto the word 'procure' in the same dictionary, inter alia, are to bring about,obtain, to get possession of by care or effort. In Moti Lai versus MaiiglaPrasad (A. I. R. 1958 Allahabad 794 at p. 797) if was observed:

"We think that the word 'obtain' in section 123(7) has been used in thesense of the meaning which connotes purpose at behind the actionof the candidate. The word has not been used in the sub-sectionin the sense of a mere passive receipt of assistance without thecandidate even being conscious of the fact that the assistance hasbeen rendered. In order to bring the case under sub-section (7),it must be shown that the candidate did make some effort orperform some purposeful act in order to get the assistance."(underlining is by me).

In case Biresh Misra versus Ram Nath Sharma and others (17 ElectionLaw Reports 243 at p. 253) a Division Bench of the Assam High Courtobserved:

"The words 'obtain' or 'procure' or 'abetting or attempting to obtain orprocure' any assistance necessarily imply some effort on the partof the candidate or his agent. Mere passive receipt of assistanceis not contemplated by the section."

Similar view has been expressed in the case of Babu Bhai Vallabh DasGandhi versus Piloo Horn! Mody (36 Election Law Reports 108 on op. 126and 127) and C. Chiranieevulu Naidu versus E. S. Thyagarajan (25 ElectionLaw Reports 201 at p. 217).

E-L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 71

In Para 13(c) of the written statement the respondent no 1 admittedthat rostrums were constructed at Harchandpur, Rae Bareli, Jagatpur,Paterwa and Reuhara. In Para 13(dT) of the written statement the respondentno. 1 quoted extensively from the instructions dated 29th November, 1958issued by the Comptroller and Auditor-General of India, copy thereof wassent by the Government of India to the Chief Secretaries of all the Statesunder the their letter, dated 12th January, 1959 (Exh. 124). It may berecalled that under the aforesaid instructions it is the duty of the StateGovernment, inter alia, to make loudspeaker arrangements and to providefor rostrums for non-official meetings of the Prime Minister also. In para13(e) the respondent no. 1 made reference to the letter of the Governmentof India, dated 19th November, 1969 (Exh. A-21), which amended rule 71(6)of the Blue Book to bring the election meetings also within the ambit ofthe instructions issued by the Comptroller and Auditor-General. In answerto interrogatory no. 28 the special attorney of the respondent no. 1 admittedthat the respondent no. 1 was generally aware of the substance of the rulesand instructions (the words "such use of Indian Air Force planes by theP.M." appear to have been inserted in the reply by inadvertence). In replyto interrogatory no. 29 it was admitted that the respondent no. 1 was a partyto the decision of the Union Government on the basis of which the letter,dated 19th November, 1969 (Exh. A-21) was issued. During her depositionin Court the respondent no. 1 again said that, according to the standinginstructions from the Government of India, whenever the Prime Ministervisits any State and addresses meetings, including election meetings, neces-sary arrangements in connection with it have to be made by the officers ofthe State Government. She added that she was aware of those instructionseven prior to 1st of February, 1971. From all these facts it is apparentthat, with the issue of letter from the Government of India, dated 19thNovember, 1969 (Exh. A^l) , the respondent no. 1 held that it was alsothe duty of the State Government to arrange for construction of rostrumsand installation of public address system for her meetings, regardless of thefact whether those meetings were to be addressed by her as a candidate inher own constituency or otherwise.

Sri Yashpal Kapur (R. W. 32), earlier Private Secretary and O. S. D. inthe respondent's Secretariat, deposed that when a regular tour programmeof the Prime Minister is prepared, the Private Secretary to the Prime Ministerissues it to the authorities concerned after it is approvd by the PrimeMinister. The respondent no. 1 also conceded in her deposition that thetour programmes concerned with the political work are prepared by theA.I.C.C. and are finalised after her approval is obtained. In answer tointerrogatory no. 3 of the second set it was admitted that the tour pro-grammes are issued, among others, to the State Government.

Now, since the instructions issued by the Comptroller and Auditor-General read with the letter of the Government of India, dated 12th January,1959 (Exh. 124) and the letter of the Government of India, dated 19th ofNovember, 1969 (Exh. A-21) required the State Government to constructrostrums and to arrange for the public address system for the electionmeetings of the respondent no. 1, besides making other arrangements, andsince the respondent no. 1 believed that it also applied to the election meet-ings to be addressed by her in her constituency, it should be presumed thatthe purpose behind sending those tour programmes to the State Governmentwas that the State Government should make all those arrangements for themeetings of the respondent no. 1. In other words, the tour programmescarried an implied direction that the State Government should also getconstructed rostrums and arrange for public address system for the election

72 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. L V I 1

meetings to be addressed by her on 1st of February, 1971, and 25th ofFebruary, 1971. It should be presumed that their respondent no. 1, asPrime Minister of this country, and with five years' experience of that officebehind her in 1971, also knew that the said work was to be done by theofficers of the State Government. In fact respondent no. 1 stated in hercross-examination that she was aware that, according to the Standing Orders,necessary arrangements in connection with the meetings, including electionmeetings, had to be made by the Officers of the State Government.

As already stated earlier, the word 'obtain' occurring in section 123(7)only implies some effort or initiative on the part of the returned candidate.Since the tour programmes were sent from the office of the respondent no. 1with her approval and they contained an implied direction that the StateGovernment may, inter alia, arrange for construction of ros*rums and forloudspeaker for the meetings of the respondent no. 1, the needed initiativehad thereby amanated from her. Further, on her own admission, respondentno. 1 knew that the aforesaid arrangement shall be made by the Officersof the State Government. The arrangements having been made the respon-dent no. 1 availed of the same in all the meetings on 1st of February, 1971and again in the meetings addressed on 25th of February, 1971. She didnot do anything in between the two dates to disavow those arrangements orto prevent the Officers of the State Government against undertaking themon 25th February, 1971. The only reasonable conclusion that can under thecircumstances be reached is than the respondent no. 1 obtained the assistanceof the officers of the State Government within the meaning of that expres-sion used in section 123(7) of the Act.

The question that next falls for consideration is whether the assistancehad been obtained for the furtherance of the prospects of the election ofrespondent no. 1.

The position of the respondent no. 1 in her constituency first of allwas that of a candidate. Her position as Prime Minister came thereafter.What she could not do as a candidate, she could as well not do as PrimeMinister. She could not therefore obtain fee assistance of the Gov-ernment Officers in her election campaign. Yet we find that it wa« done.The services of the officers of the State Government were obtained forconstruction of rostrums. The resources of the State Government wereutilised for that purpose. At some of the meetings the officers of the StateGovernment also arranged for supply of power for She functioning of theloudspeakers, as shown earlier. The assistance of the State Govern meritwas thus obtained so that the respondent no. 1 ooakl effectively addressthe meetings for the furtherance of her prospects in the election. It maynot be out of place to add that the association of the senior officers ofthe State Government with the arrangements of rostrums and loudspeakersin the meetings of the respondent no. 1, was also likely to create an impres-sion on the mind of the electors within the constituency that the Govern-ment was assisting the respondent no. 1. It can, therefore, be safely saidthat the assistance of the officers of the State Government was obtainedfor the furtherance of the prospects of the election of respondent no. 1.

Learned counsel for the respondent no. 1 urged that the constriction-ojf rostrums and arrangements of loudspeakers could not in any wayfurther the prospects of the respondent no. l's election and,consequently even if it be held that the assistance of the officers6f the State Government had been obtained by the respondent no. 1


for the said purposes, it cannot constitute a corrupt practice. In support ofhis arguments learned counsel referred me to the cases: (1) Raj KrushnaBose versus Binod Kanungo and others (9 Election Law Reports, 295,Supreme Court), (2) Satya Dev Bushahri versus Padam Dev and others(10 Election Law Reports 193 at pp. 112 and 117) and (3) ChandrashekharSingh versus Sarjoo Prasad Singh and another (22 Election Law Reports206 at p. 217, Patna). On a perusal of these cases, however, I find thatthey are distinguishable. In the first case the Court said that section 33(2)of the Act, as it then existed, conferred a right on every person to subs-cribe as proposer or seconder as many nomination papers as there werevacancies to be filled. It was further held that section 123(8) [which nowcorresponds to section 123(7)] was to be interpreted in harmony with sec-tion 33(2) and, interpreting in that manner, the act of a Governmentservant, subscribing any nomination paper as a proposer or seconder didnot fall within the mischief of section 123(8). In the second case theCourt held that in view of the duties that a polling agent has to perform,it cannot be said that the fact of a Government servant acting as a pollingagent for any candidate can constitute a corrupt practice. In reachingthis conclusion it was also taken into consideration that, while the relevant!section contained a prohibition against the appointment of certain personsas election agent, there was no such reference to the appointment of pollingagents. The Court proceeded to say on page 120 :

"To hold that Government servants are, as such and as a class, dis-qualified to act as poliing agents would be to engraft an excep-tion to the statute, which is not there".

In the third case the son of the returned candidate, who was a Sub-Inspector of Police under suspension, had driven the jeep of Sarvsri S. K.Sinha arid Morarji Desai when -hey came into the constituency for electioncampaign and the Court observed:

"Mere driving of 'he jeep of Dr. S. K. Sinha and Sri Morarji Desai,•-'/•:.-ii if proved cannot be said to be any assistance in the further-ance of the prospects of the respondent's election from a personin the service oi -the Government. Mere driving of the jeep is:•: a;, of e^rrv^g ;Iu leaders who were important member-: ofeither State Government or Central Government and the Sub-inspector of Police, even if he was en have could be expected,if required, to show this much of courtsey to the important leaderswho were members of the Government too".

It: is worthy of notice that in this case the Sub-Inspector of Police hadnot rendered any service directly to the candidate but had rendered someservice by way of courtsey to two leaders of outstanding importance whowere also members of the Government. Thus on facts none of the threecases referred to by learned counsel for the respondent no. 1 is analogousto the case before me.

Learned counsel for the respondent no. 1 also referred me to Articles256 and 257 of the Constitution and urged that the earlier mentionedinstructions were issued by the Government of India in exercise of itsexecutive power under those Articles. The Representation of the PeopleAct was, however, enacted by the Parliament in exercise of its constitutionalpower. Therefore, whether or not the earlier mentioned instructions wereissued by the Government of India under Articles 256 and 257 of theConstitution they cannot override the mandate of the Parliament containedin the Act.

74 SHRI RAJ NARAIN V. SMT. INDiRA GANDHI [VOL. LVII

Learned counsel for the respondent no. 1 stressed that the PrimeMinister of a country commands special position and that it is mandatorythat arrangements for her security are made even when he/she visits aparticular constituency as a candidate seeking election from there. Learnedcounsel urged that the provisions contained in the representation of thePeople Act should not be interpreted in a rigid manner and that! allowanceshould be given to that position while interpreting them. I have, however,already said earlier that the construction of rostrums and arrangements ofpublic address system are not intimately connected with security and couldbe conveniently allowed to be arranged by the party concerned. Butassuming that security was involved in the construction of rostrums, thefact remains that the representation of the People Act makes no concessionin favour of the Prime Minister or any other office-bearer of the Govern-ment. According to law, as it stands, obtaining assistant's of the officersspecified in section 123(7) of the Act by a candidate for furtherance of herelection prospects is a corrupt practice, regardless of the fact whether thecandidate is an ordinary person or a person holding high omce in theGovernment. If it were felt that the position of the Prime Minister requiredsome concession being made in the matter, the Legislature could be movedto make necessary provision in that regard in section 123(7) of the Act.In the absence of any such provision, the mere fact that the respondentno. 1 happened to be the Prime Minister cannot undo the effect of herobtaining assistance of the officers of the State Government for furtheranceof her election prospects.

Learned counsel for the respondent no. 1 also urged that, accordingto the evidence on record, the respondent no. 1 did not make any canvassingfor herself while addressing meetings on 1st of February, 1971 and 25thof February, 1971 and that she only did propaganda for the party. Onthis basis it was urged that any assistance given to the respondent no. 1in those meetings could not be held to be assistance for furtherance of theelection prospects of the respondent no. 1. This argument cannot be accep-ted for any moment. The respondent no. 1 was the only Congress candi-date from Rae Bareli Parliamentary Constituency.. The respondent no. 1pleaded in para 15(«) of the written statement that she had requested thevoters to put the prescribed mark on the symbol of cow and cnlf. A? aCongress candidate that was her symbol also. Therefore, when she askedthe electors within the constituency of Rae Bareli to put their mark againstthe symbol of cow and calf, she clearly canvassed for herself.

In view of all that has been said above. I hold that the respondent no.1 obtained the assistance of the officers of the State Government, parti-cularly the District Magistrate, the Superintendent of Police, the ExecutiveEngineer, P.W.D. and the Engineer, Hydel Department for constructionof rostrums and arrangement of supply of power for loudspeakers in fhemeetings addressed by her on 1st of February, 1971 and 25th of February,1971 and further that the said assistance was for the furtherance of 'heprospects of the respondent no. 1 in her election. The respondent no. Iwas thus guilty of a corrupt practice under section 123(7) of the Act.

Issue no. 3 is accordingly answered against the respondent no. 1 andin favour of the petitioner.

Issues nos. 4 and 1

These issues arise out of the allegations contained in para 10 and para12 of the petition. In para 10 it is alleged that Sri Yashpal Kapur, theelection agent' of respondent no. 1, and her other agents with the consent


of the said Sri Kapur, distributed a large number of quilts, blankets anddhotis as well as liquor among the electors of the constituency with theobject of inducing them to vote for respondent no. 1. According toSchedule A-l, which contains the details of this corrupt practice, distribu-tion of blankets, dhotis, quilts and liquor was done in Salon, Bhaon,Dalmau, Harchandpur, Sareni and Lalganj. In para 12 of the petitionit is alleged that Sri Yashpal Kapur, the election agent of therespondent no. 1, and some other agents and persons with hisconsent, hired and procured a number of vehicles for the free convey-ance of electors to various polling stations in the said constituency on "stMarch, 3rd March and 5th March, 1971. The details of this corruptpractice are mentioned in Schedule B-l and, according to that Schedule,this corrupt practice was committed at polling stations Rahi, Bhaon, Salon,Sareni. Harchandpur and at six polling stations situate in Rae Bareli properand three polling stations situate in Bawan Buzurg.

The respondent no. 1 in her written statement stoutly denied thecommission of both the alleged corrupt practices.

The petitioner in order to prove the aforesaid allegations examinedSri A. C. Mathur (P.W. 19) and Budhu (P.W. 24) only.

Sri A. C. Mathur (P.W. 19) was Presiding Officer at Rahi pollingstation on 1st of March, 1971. He said that on that date some persorT,whose name he did not remember, handed over to him an application(Paper No. A-295) and that he made an endorsement on that application.Applicaiion (Paper No. A-295) purports to have been given by SaratKumar Singh, Polling Agent of the petitioner at Rahi polling station,alleging that the workers of the respondent no. 1 were transporting votersby bus UPF 214. The endorsement made by Sri Mathur on this appli-cation is Exhibit-55 and it reads as follows :

"Received (?) with the remark that the vehicle under reference hasnot been seen by me personally. However, the application is beingforwarded to the Section Magistrate".

The petitioner did not examine Sarat Kumar Singh, the purported authorof the complaint (Paper No. A-295); and Sri A. C. Mathur, the PresidingOfficer has not said anything, either in his deposition or in the endorsementmade by him on that complaint, lending support to it. The evidence ofSri A. C. Mathur thus fails that any voters were transported by or inbehalf of the respondent no. 1 free of cost to Rahipur polling station.

This takes me to the other witness, namely Budhu (P.W. 24). He isa resident of village Bhaon. He deposed that on the date of polling a biffjeep came to the village: that the people were saying that the jeep belongedto Smt. Premwati; that the jeep carried the flag and posters of the CongressParty: and that it made 8 or 10 trips for carrying the voters. He said thatSmt. Premwati remained present in the village till about 3 p. m.

Now, if it were true that voters had been transported in the manneralleaed by Budhu P.W.. some complaints about the same should have beenmade by the polling agem of the petitioner at the relevant polling stationsand evidence about the same could be adduced. No such evidence has,however, been adduced. The oraLtestimony of Budhu alone cannot, there-fore, be given much credence. That apart, the respondent examined anumber of witnesses to rebut the evidence of Budhu (P.W. 24). Smt. Prem-wati (RW. 21) herself entered the witness-box and made a statement onoath to the effect that she did not come to Rae Bareli constituency during

76 SHRI RAJ NAKAIN V. SMT. INDIRA GANDHI [VOL. LV1I

the period of election and that she remained busy in connection with theelection of Smt. Shiela Kaul in Lucknow City Constituency. It is truethat Smt. Shiela Kaul was also a candidate of Congress (Rj and is anaunt of respondent no. 1. However the mere fact that Smt. Premwati(R.W. 21) was working for the aunt of respondent no. 1 cannot constitutea sufficient ground for discarding her testimony.

Other witnesses examined by the respondent no. 1 in this connectionate Gajraj Singh (R.W. 19), a resident of village Sarai Damu. Lalu(R.W. 20), also a resident of village Sarai Damn, Ganga (R.W. 22), Pra-dhan of village Jamalpur Nankari, Kuir (R.W. 23), another resident ofvillage Jamalp'ur Nankari and Thaknr Ambiv- S::r'; (E ' v . ^ - \ OH;••?.)Singh and Lalu R.Ws. said that they had gone to give their votes at thepolling station situate in MoEammadpur Kuchari. They further said thatthey and other people of their village had gone on foot to cast their v-Jesand that it was wrong that any jeep or tractor was utilised to transport anyvoters from their village to the rolling stations. Ganga and Kuir K. V/s.deposed that they went 'o Bhaon polling 'tation to c:ir: -belr vc!:es. Theyfurther said that they and ether people of their village went to the pollingstation on foot and that it was wrong that any vehicle had been used foriransporting them to the polling station. It may be mentioned here thataccording to the statement made by Budhu in cross-examination, Kc.ir andGajraj Singh were among the persons who had been transported by ;eep.Thakur Ambika Singh (R.'W. 24) was named in Schedule B-l as one ofthose persons who transported voters. He stated on oath that he n;-\ertransported any voters from any place in the constituency to any pollingstation. The above being the state of evidence, I find that the petitioner,failed to prove that the election agent of the respondent no. 1, or anyother person with his consent, transported voters free of cost \o any pollingstation.

Tn support of the allegation that blankets, dhotis or quilts were distri-buted, it is Budhu (P.W. 24) only who has made a statement. Accordingto him, Madan Mohan Misra and some other persons visited his village onthe date preceding the election for distributing the aforesaid articles tothe voters in village Bhaon. He also claimed to have received one dhoti.He further named Kuir and said that, among the residents of JamalpurNankari, he was one of those who had been distributed cloth.

The respondent examined Shitla Bux Singh (R.W. 15), Kuir (R.W. 23)and Thakur Ambika Singh (R.W. 24). According to the Schedule A-lappended to the petition, Shitla Bux Singh was one of those persons whoset blankets etc. distributed. Shitla Bux Singh entered the witness-box todeny it on oath. Kuir (R.W. 23) contradicted that part of the statementof Budhu (P.W. 24) wherein he said that cloth had also been distributedto him. Thakur Ambika Singh (R.W. 24) is Pramukh of the KshettraSamiti. He also denied having participated in connection with the distri-bution of quilts, kambals, dhotis etc. in any part of the constituency.

In the aforesaid circumstances, reliance cannot be placed on thesolitary testimony of Budhu in order to accept that any quilts, blankets,dhotis etc. were at all distributed on behalf of respondent no. 1 in theconstituency.

Issues nos. 4 and 7 are accordingly decided against the petitioner andin favour of respondent no. 1,


Issue no. 10In para 22 of the written statement the respondent no. 1 pleaded that

the security deposit was not made according to rules and hence this issue.This question, however, stands concluded with the decision of this Courtin case, Election Petition no. 1 of 1971 (Brahma Datta versus ParipumaNand and others), decided on 9th November, 1971. The objection takenin this case is precisely the same as was raised in Election Petition No. 1of 1971. Learned Counsel for respondent no. 1 has failed to show anyreason for which the present case may be held to be distinguishable on factsfrom the case of Brahma Datta versus Paripuma Nand and others (supra).In view of the decision of this Court in that case, I find that the securitydeposit made by the petitioner was in order.

The issue is accordingly answered in favour of the petitioner andagainst the respondent no. 1.Issue nos. 5 and 8

':n the written statement filed by respondent no. 1 it was pleaded thatpara 10 read with Schedule A and para 12 read with Schedule B of thepetition furnished no "particulars of corrupt practice and were, therefore,liab!: to be struck off.

The allegation contained in para 10 of the petition, briefly stated, isthat the election agent of the respondent no. 1 and her other agents withthe consent of the election agent, freely distributed quilts, blankets, dhotisand liquor among the electorate to induce them to vote for respondent no.1. Schedule A contained the names of the persons who distributed theaforesaid articles, the names of the places where they were distributed.The allegation contained in para 12 of the petition is that on 1st March,1971, 3rd March. 1971 and 15th March, 1971 the election agent of therespondent no. 1, ?nd some other persons with his consent, hired or pro-cured a number of vehicles for free conveyance of electors to various poll-ing stations. Schedule B, accompanying the petition, disclosed the namesof the persons who transported the voters, the registration number of thevehicles used by them for transporting voters, the names of the pollingstations to which the voters were transported and the dates on which theywere transported.

From the order dated 20th September, 1973 passed by K. N. Srivastava,J. it appears that after the statements of 15 witnesses on the side of thepetitioner had been recorded, it was pressed on behalf of the respondentno. 1 that issues nos. 5 and 8 be decided as preliminary issues. After hear-ing Learned Counsel for the parties, it was held by K. N. Srivastava. J.that allegations contained in paras 10 and 12 were vague in some respectsIn regard to para no. 10 and Schedule A, he pointed out that it did notdisclose—

(i) whether the liquor, blanklet's, quilts and dhotis were distributedat the same time and place or separately ; and

(ii) so far as big places like Salon and others mentioned in ScheduleA are concerned, the places where the alleged corrupt practicewas committed should have been specifically mentioned.

In regard to para 12 and Schedule B, it was pointed out by K. N.Srivastava, J. that the allegations contained therein were vague in followingmanner:

(1) The petitioner should have given the details as to which vehiclementioned in Schedule B was procured or hired by which worker

or agent of respondent no. 1.


(2) The names of polling stations from or to which the voters werecarried required to be disclosed.

(3) It was also required to be disclosed whether the vehicles men-tioned in Schedule B were tractors, taxis, buses or motorcars.

Other objections raised on behalf of the respondent were rejected withthe following observations:

"The other objections are of a technical nature about the vaguenessand they have no force in them."

In consequence of the above order passed by K. N. Srivastava. J. thepetitioner furnished better particulars.

Counsel for both the parties were again heard and thereafter a de-tailed order was passed by me on 29th of August, 1974. By that order theparticulars furnished by the petitioner in regard to distribution of blankets,quilts and dhotis were accepted as sufficient and those particulars wereallowed to be incorporated. With regard to the other allegation about thedistribution of liquor, it was held that it1 continued to remain vague andconsequently, that part of para 10 of the petition which related to distri-bution of liquor, was ordered to be deleted.

In regard to particulars furnished to clarify the allegation containedin para 12, the only objection raised before me was that the descriptionof Amresh Prasad Srivastava, Zulfiqar Khan and Anand Kumar, mention-ed in column 1 of Schedule B-l (sought to be substituted for Schedule B)was not sufficient to enable the respondent to fix their identity. That ob-jection was upheld and it was directed that while Schedule B may besubstituted with Schedule B-l, as prayed, the aforesaid names shall bedeleted therefrom.

The result of the order dated 29th August, 1974 is that thereafter theallegations contained in paras 10 and 12 of the petition, coupled withSchedule A-l and Schedule B-l do not suffer from any vagueness. Need-less to say that Learned Counsel for the petitioner also failed to point outat the time of the final arguments in the case that paras 10 and 12, coupledwith Schedule A-l and Schedule B-l!, still suffer from any vagueness.

Issues 5 and 8 are accordingly answered in favour of the petitionerand against the respondent no. 1.

Issue no. 6In para 11 of the petition it is alleged that the symbol of cow and

calf is a religious symbol; that the party to which the respondent no. lbelongs induced the Election Commission of India to allot to the partythe symbol of cow and calf; that the respondent no. 1 made use of andappealed to that religious symbol in each of her election meetings address-ed by her in the constituency on 25th of February, 1971. It is furtheralleged that the respondent no. 1 exhorted the voters to cast their votesby putting the prescribed seal mark on the symbol of cow and calf in themeetings addressed by her on 25th of February, 1971 at Bhojpur, Murai-ka-bagh, Lalganj, Sothi and other places.

In reply to the above allegation, the respondent no 1 pleaded that thesymbol of cow and calf was not a religious symbol nor was if so regardedby the Hindu community; that it was wrong that her political party in-duced the Election Commission of India to allot that symbol to her party;that it was also wrong that extensive use of and appeal to the religious

E.t.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 7 £

symbol of cow and calf was made by her in any of the meetings addressedon 25th of February, 1971. She added that during her speeches she merelyinformed that the voters that the cow and calf was the election symbol ofCongress (R) and that voting mark should be put on that symbol. Anotherplea raised on behalf of the respondent no. 1 in this connection was thatthe decision of the Election Commission in the matter of reservation ofsymbols was final and, the symbol of cow and calf having been allottedto the Congress (R), to which party the respondent no. 1 belonged, itcculd not be made a ground for her election being avoided under section100 of the Representation of the People Act.

The evidence adduced by the petitioner under this issue can be classi-fied under two heads :

(1) Raghbar Mithu Lai Sastri (P.W. 16) and Surya Bali Shukia (P. W.34) were examined in order to depose about the petition of thecow and calf in the Hindu religion. Sant Saran Vedanti (P.W.33) deposed that he was a member of the Akhil Bhartiya RamRajya Parishad. He was examined to prove that in 1952 theAkhil Bhartiya Ram Rajya Parishad applied for the symbol ofcow and calf being allotted to it but it was refused on the groundthat it was a religious symbol. A. N. Sen (P. W. 54), Secretary,Election Commission of India, was examined to prove that Akhil.Bhartiya Ram Rajya Parishad applied for the allotment of thesymbol of cow and calf for the general election of 1952 and thesame was refused.

(2) Ram Nihore (P.W. 25), Raj Kishore Singh (P.W. 26), RamKumar (P.W. 46) are witnesses under the second head. Theywere examined to prove that during her speeches the respondentno. 1 said that cow and calf was a religious symbol and thatpeople should therefore put their mark on that symbol whilecasting their votes.

So far as the evidence of the witnesses mentioned under the secondhead above is concerned, learned counsel for the respondent no. 1 urgedthat since there was no pleading in the petition that the respondent no. 1made an appeal in any of her election meetings that the symbol of cowand calf was a 'dharmik prateek', the evidence was not in conformity withthe pleadings and cannot be looked into. I have already referred to whathas been alleged in the petition. As mentioned earlier, all that is statedtherein that in the meetings addressed by the respondent no. 1 on 25thFebruary, 1971 she made use of and appealed to the religious symbol ofcow and calf. It has not been clarified as to what words were used bythe respondent no. 1 while making that appeal. In other words, the plead-ings on the point have been left vague in the petition. Learned counselfor the respondent no. 1 urged that the evidence adduced by the petitionerin order to prove that, in the meetings addressed by her, the respondentno. 1 said that cow and calf was a religious symbol and consequentlypeople should put their mark on that symbol, is not strictly in conformitywith the pleadings. Learned counsel pointed out that no amount of evi-dence can be looked into upon a plea which has not been put forth inthe pleadings. In view of the objection raised on behalf of the respondent,learned counsel for the petitioner said at the time of argument that heconfined his case only to the use of the symbol of cow and calf. He gaveup that part of the case where in it was alleged that a appeals were madeto the religious symbol of cow and calf by the respondent no. 1. It isaccordingly not necessary to refer to the evidence of Ram Nihore (P. W.

80 SHRI RAJ NARAIN V. SMT. INDIRA 3ANDHI [VOL. LVII

25), Raj Kishore Singh (P. W. 26) and Ram Kumar (P. W. 46), nor is itnecessary to refer to the evidence adduced by the respondent to rebut theevidence of the aforesaid P. Ws.

The question that, therefore, remains for consideration is whether thesymbol of cow and calf was a religious symbol and the mere use of thatsymbol as an election symbol constituted a corrupt practice under section123(3) of the Representation of the People Act.

It will first be convenient to dispose cf the evidence of Sant SaranVedanti (P. W. 33) and A. N. Sen (P. W. 34). Sant Saran Vedanti merelystated that the Akhil Bhartiya Ram Rajya Parishad applied tor the elec-tion symbol of cow and calf in 1952 and that the Election Commissionrefused to grant that symbol to the Akhil Bhartiya Ram Rajya Parishadon the ground that it was a religious symbol.

The statement of Sri Sant Saran Vedanti that Akfrl Bhartiya RamRajya Parishad, inter alia, applied for the symbol of cow and calf forthe election of 1952 finds some support from the statement of Shri A. N.Sen (P.W. 54), Secretary to the Election Commission of India, who staledthat it was apparent from the report of the First General Elections inIndia in 1951-52 that Akhil Bhartiya Ram Rajya Parishad asked for allot-ment of symbol of "milch cow with calf and milkmaid". A copy of thatreport was placed by Shri A. N. Sen on the record of this case and aperusal thereof does show that for the elections of 1952 Akhil BhartiyaRam Rajya Parishad had applied for the aforesaid symbol. Sri Sant SaranVedanti- however, failed to place on record any copy of the order passedon the application of Akhil Bhartiya Ram Rajya Parishad for the allot-ment of the said symbol. He said that a reply had been received fromthe Election, Commission but it was not traceable. In cross-examinationhe conceded that the reply received from the Election Commission was inEnglish and that he could neither read nor understand English. Thestatement made by Sri Sant Saran Vedanti does not, therefore, constitutea sufficient proof of the fact that the Election Commission of India refusedto allot the symbol of "milch cow with calf and milkmaid" because it•treated that symbol to be a religious symbol. My attention was invitedto the views expressed by !i;e Election Cemrn'r^ion i-i their ";-port in theFirst General Elections in India (1951-52), wherein they said :

"The Commission decided that the symbols should be familiar to, andeasily recognisable by, illiterate and ignorant voters and readily dis-tinguishable by them from each other and that no object havingany religious or sentimental association, e.g. a cow. a temple, thenational flag, a spinning wheel and the like should find a placein the list of approved symbols."

I do not think that on the basis of the above view held by the Elec-tion Commission it can be inferred that the symbol of "milch cow withcalf and milkmaid" was really treated by the Election Commission as areligious symbol and was refused on that ground. Assuming, however, thatthe Election Commission had a feeling that the symbol of cow with calfand milkmaid applied for by the Akhil Bhartiya Ram Rajya Parishad,was a religious symbol that view is not binding on this Court. The court,has to come to its own conclusion on the basis of the material placedbefore it and not to adopt the view expressed by the Election Commission.

Therefore, looked at from any angle, the evidence of Sri Sant Saran

Vedanti (P. W. 33) fails to prove that the cow and calf is a religioussymbol.

E.L.R ] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 81

Coming to the evidence of Sri A. N. Sen (P. W. 54) ; as already stated,he merely said that it appeared from the report of the Election Commis-sion for the year 1951-52 that Akhil Bhartiya Ram Rajya Parishad hadapplied for the symbol of milch cow with calf and milkmaid. The reportfiled by Sri Sen further shows that Akhil Bhartiya Ram Rajya Parishadwas allotted the symbol of 'Rising Sun', which was their second preference.Nothing further is proved either by the statement of Sri A. N. Sen or bythe report of the Election Commission for the year 1951-52. I accordinglyhold that the evidence of Sri A. N. Sen (P. W. 54) can also have no bear-ing on the point whether the symbol of cow and calf allotted to theCongress (R) for the elections of 1971 was a religious symbol. In fact SriA. N. Sen stated that the Election Commission did not consider thesymbol of cow and calf to be a religious symbol within the meaning ofsection 123(3) of the Representation of the People Act and it was forthat reason that the said symbol was allotted by the Commission to theCongress (R).

This takes me to the o'her two witnesses examined on this point bythe petitioner i.e. Ragbubar Mithu Lai Shas'r; (P W 16) and Surya BallShukia (P. W.' 34).

Keghubar Mithu Sliastri claimed to be a scholar of Hindu scriptures.Ariel making a reference to the Vedas, Nirukti, the Bhagwat Puran, theMahabharat etc., he deposed : —

"The cow and even the image of cow or any portrait and even things,closely associated with cow as sacred, have always been treatedas God and worshipped by Hindus."

:\fov/, it is a matter of common knowledge that in all scriptures of theyore resort hss been made to similies. metaphors, allegories and hyperbolesScholars in mythology give allowance to it while understanding the same.A reading of the statement made by Shri Raghubar Mithu Lai Shastrias a whole does not show that cow has been held to be one of the recog-niseiV Gods in the Hindu mythology, though she has been held sacredand worthy of great veneration. After making a reference to the 47th and<2 8th Verse of Chapter XXIII of Yajurveda, the witness said that accord-ing to said Verses, Vedas were light like Surya, lake equal to the Oceanis sky, Indra is greater than earth, but there is no measure for cow. Thestatement that there was no measure for cow doe, not. in my opinion,leads to the conclusion that the cow was a God. It can very well meanthat cow had no measure for its utility and usefulness in the Hindu society.Again after referring to the 10th Kanda of the Yatherveda, the witnesssaid that according to the First, Second and Third Mantras thereof any-body who worships cow when it is born and worships it in its entirety,namely its hair, its hoofs, its colour and its appearance, alone is fit forbeing given the cow as a gift. Now, this again does not show that cowwas equated with God. It only states that no person should be givena cow in gift unless he adores her, for, if he is not an adorer of a cow,he may maltreat her. Then the witness referred tr» Verse 101 in ChapterX, Mandal 8 and Mantra 151 of the Rigveda and said that the sense ofthat Mantra is that cow is the mother of 11 Rudra Gods, daughter of8 Vasus, sister of 12 Adityas and centre of immortality or nectar.According to the witness, the Mantra carries a mandate that a cow whichis without any defect or default and at the same time not humble shouldnever be killed. Now, the mere fact that cow has been described in theaforesaid part of Rigveda as mother of some Gods and sister of others


cannot in my opinion lead to the conclusion that cow was given the statusof God. It is well known that the cow's milk has been held to be ex-tremely useful and it is said that it carries medicinal properties. It isalso said that one who lives on cow's milk enjoys a long life. It was,therefore, said in this Mantra that cow was the centre of immortality orof nectar. If appears that, it was also for this reason that cow has beenassociated with Rudra Gods and Vasus in the aforesaid Mantra. Aftermaking a reference to Sloke 10 of Chapter XVI, third Askandh of theBhagwat the witness said:

"Those people who treat the highly spiritual Brahmins, cows and livingbeings having no shelter, who are the very physical body of mine,thinking them to be different from me will have trouble by thevulture like messengers of Yama representating me."

The Hindu belief is that God resides within every living being andmore so within those who are holy and live a sacred life. It is also oneof the beliefs that God looks after those who are not looked after byanybody. It! is in that sense that it has been stated in the Bhagwat thatGod resides within spiritual Brahmins, cows, and living beings having noshelter. To enjoin that they are treated with respect, it is further statedtherein that if anybody treats them to be different from God he will haveto suffer consequences for the same. I do not think it can be inferredon the basis thereof that cow was herself a God. In fact Sri RaghubarMithu Lai Shastri himself made significant concessions during his cross-examination to dispel the theory sought to be enunciated by him duringMi examination in-chief that cow is God in Hindu mythology. He saidthat if by seeing the picture of a calf, one's pity is aroused then that calfwill be religious symbol. In answer to a further question he said thatnot only a bullock but any living creature that evoked pity is a religiou*symbol. In answer to the question as to what was the quality, besidesbeing fit for worship, which makes an article a religious symbol, the wit-ness said that if anything or object serves the purpose of coming in greatute in life e.g. to preserve human life, it becomes a thing of worship, andthat economics also plays a part in the matter. It is needless to dilate anyfurther on the statement made by Sri Raghubar Mithu Lai Shastri (P: W.16). I would state at the cost of repetition that his evidence in my opi-nion does not lead to the conclusion that cow is God and, therefore, areligious symbol.

Learned counsel for the petitioner also referred me to the evidenceof Dr. Pattabhi Ram Shastri (R. W. 35) and urged that the statementmade by him also leads to the conclusion that cow has been held to bea God in Hindu mythology. I have, therefore, perused the statement ofDr. Pattabhi Ram Shastti (P. W. 34) as well and I am unable to agreewith learned counsel for the petitioner. Dr. Pattabhi Ram Shastri ckarlystated in the examination-in-chief that the picture or portrait of a cowand calf is not a religious symbol. He further stated that in Shastras cowhas been mentioned only as one of the dravyas (articles) and in Vedas ithas been considered to be the national wealth. He was then confrontedwith some scriptures in order to elicit from him that cow was God. Most ofthe scriptures were the same as have been referred to by Dr. RaghubarMithu Lai Shastri (P. W. 16) and it would be useless to refer to them ;ndetail again. The statement made by Dr. Pattabhi Ram Shastri in cross-examination also leads to the same conclusions, namely that cow has beenmentioned with reference and adoration in the holy scriptures. That cer-tainly does not mean that cow is God or one of the Gods.


Learned counsel for the petitioner then referred to the book 'Gosewa'written by Mahatma Gandhi (Translated by Ram Narain Chaudhary). Theportion relied upon by the learned counsel for the petitioner occurs on page12 of the Book and reads as follows :

"Phirbhi samanya Hinduon ke liye to goraksha ka prem him Hindutatva ka mukhya lakchanya thahraya hai."

Learned counsel stressed that Mahatma Gandhi was a great scholarand the aforesaid view expressed by him in his book should also lead tothe conclusion that has. been held to be a God in Hindu mythology. I can-not ascribe that meaning to the aforesaid words occurring in the Book'Gosewa'. To my mind that does not mean anything beyond this that tocarry love for cow is one of the tenets of Hindu religion. That obviouslyis based on the fact that since a long time, rather since the times of theholy scriptures, cow has been treated sacred in Hindu religion. Every thingthat is sacred does not become God.

Reference was also made by learned counsel for the petitioner to aBook "Gae ki jan bachane ka bayan" by Khwaja Hasan Nizami. Parti-cular stress was laid by learned counsel for the petitioner on the contentsof pages 35 and 46-47 of this Book. Page 35 reproduces a Fatwa by oneMaulana Abdul Hai. All that has been stressed in it is that cow slaughterwas not one of the essentials of Islam, that since cow slaughter offendsagainst Hindu religion and causes pain to the Hindu neighbour, it wasnecessary for the Muslims to refrain from indulging in cow slaughter. I failto understand how anything contained in this Fatwa can go to prove thatcow is God. It only mentions a humane principle that nothing should bedone which offends the followers of another religion. Coming to pages 46and 47, they purport to carry the translation of the Farman of the EmperorBabar. The advice given in this Farman by Emperor Babar to his sonwas that he should refrain from cow slaughter, so that he could capturethe love and respect of the Hindu population of the country. Again, it wasa lesson in politics that was given by Emperor Babar through this Farman.That certainly does not prove that cow is God.

Reference was also made by learned counsel for the petitioner duringhis arguments to a Book "Hindu Pantheon" by Edward Moor (pages 78and 79), on page 79 it is stated that images of cow and of hercalf are worshipped in India. In paragraph 3 on page 78it is said "A cow, the reder will perceive, is no unimportant mythologicalpersonage, nor is the bull, the latter has been spoken of, in another place,as the nandi of Mahadeva, and the symbol of divine justice." In the thirdparagraph on page 79 it is said, "A cow sucking a calf is a very favouritesubject of Hindu artists, in paint, ivory, brass, mortar etc." It is not statedeither on page 78 or on page 79 of this Book that cow is held to be aGod in the Hindu religion.

Learned counsel for the petitioner then referred me to EncylopaediaBritania, 1962 Edition, Vol. II wherein describing Hinduism, it is stated :

"Many animals, plants and natural objects are sacred in varyingdegrees, the most noteworthy being the cow. The bull is speciallysacred because of his connection with God Shiva, But the cow isdivine in her own right and is generally reverred as the representa-tive of mother earth."

In the Wabster's new International Dictionary the word 'divine' hasbeen assigned the meaning of "God or pertaining to God, proceeding fromGod; appropriated to God, pertaining to or proceeding from a diety; God


like and heavenly." Now, everything that partains to God or proceeds fromGod or is appropriated to God or is God like or heavenly is not necessarilyitself a God. While saying that the cow is divine in her own right, thesense conveyed is that though bulls and other animals are held sacred be-cause of their association with some God, cow is held sacred without anysuch association. Reliance was also placed by learned counsel for the peti-tioner on some observations made by the Supreme Court in the case Moham-mad Hanif Qurreshi and others versus State of Bihar (A.I.R. 1958 SupremeCourt 731 at pp. 744 and 755 para 22). Learned counsel particularly in-vited my attention to the sentence occurring on page 75, which states thatcow was gradually raised to the status of divinity. That sentence is, how-ever, to be read in this context in which it is mentioned and not removedfrom it. In the opening part of paragraph 22 it is stated that in the Vedictimes animal flesh formed the staple food of the people, and that goats, sheep,cows, buffaloes and even horses were slaughtered for food and for religioussacrifice and that their flesh used to be offered to fhe Gods. Thereafter re-ference has been made to some authorities of Hindu mythology and it isstated :

"Though the custom of slaughtering of cows and bulls prevailed duringthe Vedic period, nevertheless, • even in the Rigveda times thereseems to have grown up a revulsion of feeling against the custom.The cow gradually came to acquire a special sanctity and was call-ed 'Aghnya' (not to be slain). There was a school of thinkersamongst the Risis, who set their face against the custom of killingsuch useful animals as the cow and the bull. High praise wasbestowed on the cows as will appear from the following verses fromRig Veda, Book VI, Hymn XXVIII (Cows) attributed to the wor-ship of sage Bhardvaja "

A reading of para 20 as a whole thus makes it appear that in the earlyVedic times cow and bull were slaughtered for food as well as for religioussacrifice. Gradually the Aryans realised the usefulness of the cow and thebull which led to the cow and bull being praised in the Hindu mythologyin high terms. It appears that in order to prevent the slaughter of the bulland cow, particularly in realisation of the great utility of the cow, this coursewas adopted in the Hindu scriptures. I do not agree that anything said bythe Supreme Court in the decision M. H. Qurreshi v. State of Bihar {Supra)and contained in para 22 of the report thereof, amounts to saying that cowis treated to be a God in the Hindu religion.

Whether the cow and calf is a religious symbol, should in fact beunderstood in the sense common man understands it. The common man inour country does not delve deep into the Vedas, Purans and Smritis in orderto know the identity and status of deities in the Hindu mythology. No onecan deny that cow, like other cattle, are bought and sold all over the worldsince times immemorial. It also cannot be denied that cows are so oftenshabbily treated by an ordinary man. It is beyond the understanding of acommon man professing Hindu religion that the Hindu Gods and deitiesshould be so humble and weak and any person may buy and sell them athis pleasure and any person can maltreat them. Again, if cow is a deity,the entire race thereof m this universe should be held deities which is notvery much understandable. The rational view, therefore, is that, in view ofher high utility, cow is treated with great reverence. It cannot, however,be equated with God or deity. „

Another aspect of the matter is that secfion 123(3) makes the use ofa religious symbol to be a corrupt practice. According to learned counsel


for the petitioner, cow is a deity and the picture of the cow should, there-fore, be a religious symbol. The question, however, is what is the mean-ing of the word 'symbol' ? According to Webster's New International Dic-tionary 'symbol' can signify in common, a visible thing that stands foror suggests something invisible or intangible; it can apply to anything thatserves as an outward sign of something else. According to Corpus JurisSecundum, 'symbol' means an object chosen to typify or represent someidea or quality in something else because of a resemblance in one or moreof their characteristics or association.

In view of the aforesaid meaning of the word 'symbol' the pictureof cow and calf cannot be held to be the symbol of cow herself. On thisreasoning also it cannot be held to be a religious symbol.

The point whether the cow and calf is a religious symbol or notcame up for consideration directly in the cases Bhanwar Lal v. Ram SahaiPandey and others (A.I.R. 1972 Madhya Pradesh 176 at p. 179), Elec-tion Petition No. 2 of 1971 {Shital Prasad Misra v. Nkraj Singh Chau-dhary), decided* by the High Court of Madhya Pradesh on 21st July, 1971and published in Madhya Pradesh Gazette, dated 23rd June, 1971, pt. I,p. 809, paras 18 to 23 and Sri Prasanna Das Damodar Das Palwar v. lnduLai Khanhaiya Lai Yajnik, decided by the High Court of Gujarat on 27thAugust, *1971, published in Gujarat Gazette, dated 20th July, 1972, Pt.IV C , p. 1342, at page 1355 to 1362. It was uniformly held in all thethiee cases that the cow and calf is not a religious symbol. The pointwhether cow is a religious symbol or not also came up for considerationin one context or the other in the cases Shah Jayanthi Lai Amba lal v.Kasturi Lal Nagin Das Doshi (36 Election Law Reports 189); BaijnathSingh Vaidya v. Ravendra Pratap Singh (36 Election Law Reports 327);Bishambhar Dayal v. Raj Rajeshwar and other (39 Election Law Reports363 at p. 376); Dinesh Dangi v. Daulat Ram (39 Election Law Report465 at p. 476); Shyam Lal v. Mausa Din and others (37 Election Law Re-ports 67 at p. 89); B. P. Maurya v. Prakashvir Shastri (37 Election LawReports 137 at p. 147); Sohadar Raj v. Ram Singh Aharwar and others(37 Election Law Reports 176 at p. 188); Vishwanath Prasad v. SalamatUllah and others (27 Election Law Reports 145 at p. 186 bottom) andLachchi Ram v. Jamuna Prasad Mukhariya and others (9 Election LawReports 149 at p. 157). It was held in all these cases that cow is not areligious symbol.

•It will thus appear that the consensus of authorities overwhelmingly

supports the view that the picture of cow and calf is not a religious symbol.Learned counsel for the petitioner could not cite any case in which a con-tra'ry view may have been expressed. *

I accordingly find that the respondent no. 1 cannot be held guiltyof having committed a corrupt practice under section 123(3) of the Re-presentation of the People Act merely because of the user of the symbolof cow and calf as her election symbol or because of her having said tothe electors, during the speeches addressed by her within the constituency,thai cow and calf was the symbol of .the Congress Party and that theyshould put the voting mark against that symbol.

Issue no. 6 is, therefore, answered against the petitioner and in favourof respondent no. 1 Issue mo. 9 and Writ petition no. 3761 of 1973 :

In para 13 of the election petition it is alleged that the respondentno. 1 and her election agent incurred an expenditure much beyond the



prescribed limit of Rs. 55,000 and thereby committed a corrupt practiceunder section 123(6) of the Representation of the People Act. The peti-tioner haS also given some items of expenditure alleged to have beenincurred by the respondent no. 1 and her election agent but not shownin the return of election expenses. They are as follows:

Over Rs.

(1) Tte hiring charges of vahicles specified in para 13 (1) 1,28,700(2) Cost of petrol and difcsei for the vehicles specified in

para 13 (1) 43,230(3) Payments made to the drivers of the vehicles specified

in para 13 (I) 9,900(4) Repairing and servicing charges of the vehicles specified

in para 13(1) of the petition. 5,000(5) Payments made to the workers engaged for the purpose

of election propaganda. 6,600(6) Expenses on ths erection of polling camps near the

polliflg stations the polling days. 10,000(7) Expenses on ths erection of rostrums for the public

meetjags addressed by the respondent no. 1 in theconstituency on 1st February and 25th February.1971. 1,32,000

(8) Expenses on arrangement of loudspeakers for thevarious election meetings of respondents no. 1 addres-sed on 1st of February and 25th of February, 1971. 7,000

(9) Expenses on respondent no. l's transport by Air Forceplanes and helicopters for addressing Selectionnuetings on 1st of February, 1971 and 25th ofFebruary. 1971. 1,68,000

(10) Expenses on barricading of the routes to the plaesof the election meetings addressed by the respondentno. 1 on 1st of February, 1971 andj 25th February,1971. 2,00,000

(11) Expenses on T. A. and D. A. paid to the members ofthe Police Force posted along the route up the placeof election meetings of respondent no. 1 on 1stFebruary, 1971 and 25th February, 1971. 1,40,000

<12) Expsnsesbn motor transport for the conveyance ofrespondent no. 1 and her party to the place of herelection meetings on 1st of February, 1971 and25th February, 1971. 2,000

The reply of the respondetat no. 1 to the above allegation is containedin para 17 of-ter* written statement wherein she denied that any of the alleg-ed expenditure was incurred by her or her election agent. In regard tothe item mentioned at serial no. 1 above, she said that some vehicle wereused by the District Congress Committee for doing work of the IndianNational Congress (R) in the three parliamentary constituencies, anfi that hir-ing charges thereof, if any, were also paid by the District Congress Com-mittee, out of its own party funds. The registration nos. of ^vehicles allegedto have been so used by the District Congress Committee are mentioned inpara 17(b) of the written statement. In regard to the items of expenditure


mentioned at serial nos. 2, 3 and 4 above, tha respondent pleaded that theexpenditure in that connection, if any, must have beien incurred by the Dis-trict Congress Committee and that, in any case, she or her election agentdid not incur any expenditure in that connection. With regard to the item ofexpenditure mentioned at serial no. 5, the respondent no. 1 pleaded that allthe workers who participated in the election were members- and office bearersof the party and that they did the work voluntarily and not for any remune-ration. With regard to the! item of expenditure mentioned at serial no. 6.the respondent no. ! said that <he polling camps, wherever they were estab-lished, were arranged by the District Congress Committee or the Mandal•Congress Committee., and that at most of the places local workers broughtdaris, jajims etc. to spread them under some s'hady tree near the polling-stations. The respondent added that uo expenditure was incurred by her or byher election agent in that connection and that the expenditure, wherever itwas necessary, was incurred by the District Congress Committee. Referring tothe item of expenditure mentioned at serial no. 7, she pleaded that the rost-rums were constructed under the direction of the State Government and thatthe) bills for the same, in accordance with Government notifications, wereeither paid or shall be paid by the Pradesh Congress Committee. She ad-ded that no expenditure in that connection was incurred by her or by herelection agent. Referring to the expenses mentioned at serial no. 8, the res-pondent no. 1 pleaded that the arrangement of loudspeakers was made bythe District Congress Comrmittee of Rae Bareilly and that the bills werepaid by them out of their own funds. She denied any amount having beenpaid by her or by her election agent in that connection. Referring to theitem of expenditure mentioned at serial no. 9, the respondent no. 1 pleadedthat the charges for the air journeys made by her had either been paid orshall be paid by the All India Congress Committee. In regard to the itemof expenditure mentioned at serial no. 10, the respondent no. 1 pleaded thatthe entire arrangements in that connection were made voluntarily by the StateGovernment at their own initiative as a part of their duty and the expenseswere also borne by them. Tt was added that in any event she or her electionagent did not incur any expenditure in that connection.

The petitioner did not adduce any evidence in order to prove that anyof the expenditures alleged by him in para 13 and its sub-paras were actuallyincurred by the respondent no. 1 or her election agent. The petitioner'sstand was that, on the own admission of respondent no. 1, expenditure onmost of the items alleged by him was incurred by the political party to$hicb she belonged, and that those expenses are liable to be added to theelection expenses of the respondent no 1, in view of the decision of theSupreme Court in the case Kanwar Lai Gupta versus Amur Nath Chawla(A.T.R., 1975 Supreme Court 308). After taking into consideration variousaspects of the matter, the Supreme Court in the) aforesaid case summed upits conclusion thus (on page 316, column 1);

"When the political party --ponsormg a caadid.-t? incur:, expenditure inconnection with his election, as distinguished from expenditure ongeneral party propaganda, and the candidate not only takes advan-tage of it or participates in the programme or activity or fails todisavow the expenditure or consents to it or acquiesces in it, wouidbe reasonable to infer, save in special circumstances, that he mvpliedly authorised the political party to ir»cur such expenditure andhe cannot escape the rigor of the ceiling by saying that he has notincurred the expenditure, but his political party has done so."

88 SHRI RAJ.NARAIN V. SMT. INDIRA GANDHI [VOL. LVl I

Further on (at 316, Column 2) it was again said :"In the first place, a political party is free to incur any expenditure

it likes on its general party propaganda though, of course, in thisarea also some limitative ceiling is eminently desirable coupled withfilling of return of expenses and an independent machinery toinvestigate and take action. It is only where expenditure is incur-red which can be identified with the election of a candidate thatit would be liable to be added to the expenditure of that candidateas being impliedly authorised by him".

Relying on the above case, learned counsel for the petitioner* urged that suchitems of expenditure as may, in the present case, be found to have beenincurred by the Congress (R), either through the D.C.C. or the P.C.C. orthe A.I.C.C. must be added to the election expenses of the respondent no. 1as shown in the return (Exh. 5). Learned counsel further urged that if it isfound that the total exceeds the prescribed limit of Rs. 35,000 the electionof the respondent no. 1 should be set aside.

In order to undo the effect of the decision of the Supreme Court in thecase Kanwar Lai Gupta versus Amar Naih Chawki (supra) the Representa-tion of the People (Amendment) Ordinance, 1947 was promulgated by thePresident, which was later replaced by the Representation of the People(Amendment) Act, 1954, hereafter to be called the Amending Act. Two Ex-planations have been added to section 77 of the Representation of the PeopleAct. Explanation 1 reads as follows :

"Notwithstanding any judgment, order or decision of any Court to thecontrary, any expenditure incurred or authorised in connection withthe election of a candidate by B political party or by any otherassociation or body of person' or by ".ny individual (other than thecandidate or his election agent) shall not be deemed to be and shallnot ever be deemed to have been, expenditure in connection with theelection incurred or authorised by the candidate or by his ebciiunagent, for the purposes of this sub-section :

Provided that nothing contained in this Explanation shall affect :(a) Any judgment, order or decision of the Supreme Court wheieby the

election of a candidate to the House of the People or to the Legis-lative Assembly of a State has been declared void or sei aMdsbefore the commencement of the Representation of the People(Amendment) Ordinance, 1974 (13 of 1974).

(b) Any judgment, order or decision of a High Court whereby theelection of any such candidate has been declared void or set asidebefore the commencement of the said Ordinance if no appeal hasbeen preferred to the Supreme Court against such judgment, orderor decision of the High Court before such commencement and theperiod of limitation for filling such appeal has expired before suchcommencement."

The petitioner felt that the Amending Act was constitutionally void.Entertaining some doubt on the point whether the constitutionality of theAmending Act could be challenged in the proceedings under the electionpetition, the petitioner filed Writ petition no. 3761 of 1975 impleading theUnion of India and Srimati Indira Nehru Gandhi (respondent no. 1 of theelection petition) as the respondents. In the writ petition the petitioner firstreproduced para 13 of the election petition which contained allegations re-garding the undisclosed expenditure incurred by the respondent no. 1. Thepetitioned then reproduced para 17 of the written statement of the respondent

E.L.R.] SHRI RAJ NARA1N V. SMT. INDIRA GANDHI 89

no. 1 in extenso. which contained a reply to the allegations contained in para13 of the election petition. The petitioner then proceeded to give a briefresume of the proceedings in the election petition and then said in para 16that from ths admissions mads by the respondent no. 1 (of the electionpetition) and the documentary evidence it was apparent that the respondentno. 1, the State Government and the ruling Congress Party together incurredan expenditure well beyond the permissible limit of Rs. 35,000 and that theentire expenditure was incurred in connection with the election of respondentno. 1. Reference has thereafter been made to the decision of the SupremeCourt in the case of Kanwar Lai Gupta versus Amar Nath Chawla, (supra)to the Amending Ordinance and to the Amending Act. The relevant provi-sion of the Amending Act has been reproduced in the petition. Thereafterthe petitioner has alleged the1 grounds on which he challenged the constitu-tional, validity of the Amending Act and prayed for the following reliefs:

(i) That the Representation of the People (Amending) Ordinance 1974(no. 13 of 1974) and the Representation of the People (Amending)Act, 1974 (no. 58 of 1974) be declared unconstitutional and void.

iii) That a writ, direction or order be issued restraining the respondent• no. i, from placing any reliance on the alleged Ordinance and the

Act aforesaid.Counter affidavits have been filed on behalf of both the respondents in

the writ petition maintaining that the Amendment Act was constitu-tionally valid. The learned Attorney General appeared on behalfof the Union of India to support the constitutional validity thereof.

In case State of Bihar versus Hardutia Mills, (A.I.R. 1960 SupremeCourt 378) it was observed:

In case where the vires of the statutory provisions are challenged onconstitutional grounds, it is essential that the material facts shouldfirst be clarified and ascertained with a view to determine whetherthe impugned provisions are attracted, if'they are, the constituionalchallenge to its validity must be examined and decided.

If, however, the facts admitted or proved do not attract the impugnedprovisions, there is no occasion to decide the issue about the virdsof the said provisions. Any decisions on the said question wouldin such " case be purely academic. Courts are and should be reluc-tant to decide contitutional points merely as matters of academicimportance."

In the case of Barsi Municipality v. Lokmanya Mills (A.I.R. 1973Supreme Court 1021), the Supreme Court observed:

It is a wise tradition with courts not to decide a constitutional questionif the case can be disposed of on other "rounds"

in the above view of the matter, it will be desirable first to considerthe petitioner's case on the point of expenses, assuming that the AmendmentAct does not exist and accepting the interpretation of section 77 of the Re-presentation of the People Act as made by the Supreme Court in the caseof Kanwar Lai Gupta v. Amar Nath Chawla (supra). In case it is found,after examining the petitioner's case in that manner, that the expenses in-curred by the Congress (R) in connection with the election of the respon-dent no. ! to^ethsr with the expenses shown by the respondent no. 1 in herreturn (Exh. 5), exceed the prescribed lim;t of Rs. 35,000, it will be furthernecessary to examine the contentions raised on either side about the con-stitutional validity of the Amending Act. The point whether the expenditureincurred by the State Government independently of the respondent and the


Congress (R), should or should not be added 10 the expenses of the candi-date shall also have to be considered at the same time. If it is found thatthe expenditure incurred by the Congress Party in connection with the elec-

validity

Before I proceed to examine each item of expenditure alleged by thepetitioner, it will be necessary to take notice of the legal position regardingthe burden of proof. It has been consistently held that a charge of corruptpractice is substantially akin to a criminal charge and the standard of prooftherefore is the same as in a criminal trial. A grave and heavy onus, there-fore, rests on the accuser to establish each and every ingredient of the chargeby clear, unequivocal and unimpeachable evidence beyond reasonable doubt.A charge of corrupt practice cannot be established by a mere balance ofprobabilities and, if, after giving due consideration to the totality of the evi-dence and circumstances of the case, the mind of the Court suffers withreasonable doubt, it must be held that the charge is not proved. See, RazikRam v. J. S. Chauhan (A.I.R. 1975 Supreme Court 667, paras 15 and 16),Rahim Khan v. Khurshid Ahmad (A.I.R. 1975 Supreme Court 290), Magh-raj Patodia v. R. K. Birla (A.I.R. 1971 Supreme Court 1295), Mohan Sinshv. Dhanwari Lai (A.I.R. 1964 Supreme Court 1366, para 12) and JagdishSingh v. Pratap Siii»h (A.I.R. 1965 Supreme Court 183).

Having thus noticed the legal position about the' burden of proof, I nowproceed to consider each item of expenditure, which according to the- standnow taken by the petitioner was incurred either by Congress Party or theGovernment in connection with election of respondent no. 1.

1. Hiring charges of vehicles

According to the petitioner, 32 vehicles, registration nos. whereof havebeen specified, had been hired and used for the purpose of election propa-ganda for the respondent no. 1 and an expenditure of over Rs. 1,28,700 wasincurred in that connection. As already stated earlier, the respondent no.1 denied this allegation but added that 23 vehicles [registration nos. whereofare specified in para 17 (b) of the written statement] were so used by theDistrict Congress Committeie, Rae Bareli, for election work of the IndianNational Congress (R) in the three parliamentary constituencies viz. RaeBareli, Amethi (situate in district Sultanpur and partly in district Rae Bareli)and Ram Sanehi (that situate in district Bara Banki and partly in the districtof Rae Bareli). It was further pleaded by the respondent no. 1 that thehiring charges of those vehicles, if any, were paid by the District CongressCommittee out of its own party fund as they were engaged for the party workby the District Congress Committee.

The petitioner did not lead any evidence to prove that the 32 vehiclesspecified in the election petition were either hired or engaged by or on behalfof the respondent no. 1 for election work. The petitioner has relied on theadmission made by the respondent no. 1 in the written statement and it wasurged on his behalf that the expenses incurred over hiring the 23 vehiclesmentioned in the written statement of the respondent no. 1 are liable to beadded to the election expenses of the respondent no. 1. Before however,it is done the petition must prove two things:

(i) That the 23 vehicles referred to in para 17 (b) of the writtenstatement had been taken on hire ;

and


(ii) that those 23 vehicles had been used in connection with theelection of the respondent no. 1 and not for the general party pro-paganda.

Taking up point no. (1) above- it cannot be ignored that in view of theposition held by the respondent no. 1, there could be no dearth of peoplewho could offer their vehicles, without charging anything, for election workwithin the constituency of respondent no. 1. It has not been admitted bythe respondent no. 1 in the written statement that the 23 vehicles referredto by her had been obtained by the District Congress Committee! on hire.All ihut has been pleaded is that they had been engaged or used by theDistrict Congress Committee for the purposes of the election. While referr-ing to the hire charges, the respondent no. 1 qualified her statement in thewritten statement by saying that such charges, if any, were paid by theDistrict Congress Committee. There is thus nothing in the written statementof the respondent no. 1 on which, the petitioner may rely in order to contendthat all the 23 vehicles referred to in the written statement had been obtain-ed on hire, and that no vehicle was obtained gratis. The respondent no. 1had disclosed the registration numbers of the vehicles in the written state-ment and, consequently, it cannot be successfully contended that it was im-possible for him to adduce any evidence on the point whether the vehicle'swere obtained on hire or they, or any of them, were obtained gratis. Oncethe petitioner was in possession of the registration numbers of the vehicles,he could find out the names of the owners thereof from the Regional Trans-port. Office concerned and he could examine at least some of them in order•to prove whether the vehicles had been obtained on hire or gratis. Thepetitioner has not done so nor has he offered any explanation for thatomission.

The petitioner had also to prove as to what was the rate of the hirecharges for which the vehicles had been obtained and for what period theyhad been obtained. The petitioner could conveniently prove-that fact alsoby examining the owners of the vehicles referred to by the respondent no.i in her written (•Ui'..:in;-nt. The petitioner could even exanrne some otherpersons before whom the settlement between the owners of the vehicles andthe representative of the District Congress Committee may have been reach-ed regarding the rate of hire and the period for which the vehicles wereobtained. Needless to say that no evidence has been adduced by the peti-tioner to prove the aforesaid fact.

Taking up the second point, it has been observed in the case of KanwarLai Gupta v. A mar Nath Chawla (supra) that expenditure incurred by thepolitical party sponsoring a candidate shall be liable to be added to theexpenses of the candidate only if it is incurred. In connection with the elec-tion of the candidate as distinguished from the expenditure on general partypropaganda. It was clearly stated that a political party is free to incur anyexpenditure it likes on its general party propaganda. It was, therefore, neces-sary for the petitioner to prove that the 23 vehicles referred to in para !7(b>of the v/ritten statement were used in connection with the election of therespondent and not on general party propaganda. Tt is admitted on bothhands that part of Amethi Constituency and part of Ram Sanehi GhatConstituency also fall within the district of Rae Bareli. It is, therefore, notimpossible that the vehicles were used for the general party propaganda forthe benefit of the three candidates, without the propaganda being particularlyconnected with the respondent no. 1. Obviously, a number of persons withinthe constituency would have seen the vehicles operating during the1 periodof election. It was. therefore, not impossible for the petitioner to examine


a couple of witnesses to indicate to the Court as to whether the vehicles wereused only for party propaganda or they, or any of them, were used in con-nection with the ejection of the respondent no. 1. The petitioner, however,did not examine any witness to throw any light on that point, nor has heoffered any explanation in that connection.

Learned counsel for the petitioner referred me to the documents (Exhs.A-10. A-42 and A-43) in order to contend on'the bas^s thereof that the 23vehicles referred by the respondent no. 1 in her written statement were actu-ally engaged and used in. connection with her election. Exh. A-10 is thecopy of the letter dated 23rd February, 1971 sent by Dal Bahadur Sineh,President, D'Stricc Congress Committee, Rae Bareli, to the District ElectionOfficer, Rae Bareli, intimating that the: 23 vehicles specified in that letter hadbeen engaged by the Disirici Congress Committee for election work in RaeBareli, Amethi and Rarn Sanehi Ghat constituencies. It was prayed ir^tthe vehicles may be derequisitioned. It appears that this letter failed roachieve its purpose- Sri Dal Bahadur Singh, therefore, scribbled out a notefor Sri Yashpal Kapur (R. W. 32), on the original letter. This note is Exh.A-43. Through this note Sri Dal Bahadur Singh requested Sri YashpalKapur to send a letter to the District Election Officer on the lines1 of h'sletter (Exh. A-10), requesting him that, since the vehicles specified ;-n hisletter had been engaged by the District Congress Committee, the same maybe derequisitioned. It was also mentioned in this1 note that Sri Dal BahadurSingh had tried to contact the candidates from the other two constituenciesnamely Amethi and Ram Sanehi Ghat, but they were not available. Exh.A-42 is the letter sent by Sri Yashpal Kapur to the District Election Officer,repeating the prayer that was contained in the letter dated 23rd February,1971 (Exh. A-10) sent by Sri Dal Bahadur Singh. The registration numbersof the vehicles were specified in the letter and it was urged that since ;hevehicles had been engagd by the District Congress Committee for electionwork in Rae Bareli, Amethi and Ram Sanehi Ghat constituencies, they maybe derequisitioned. Learned counsel then referred me to section 160 of TheRepresentation of the People Act. Clause (b) of sub-seciion (1) thereofconfers power on the State Government to requisition any vehicle, vessel etc.needed in the election for the purposes specified therein. The proviso ap-pended to sub-cect'on (1) states that no vehicle, vessel or aivroal which isbeing lawfully used by a candidate or his agent for any purpose connectedwith the election of such candidate . shall be requisitioned under this sub-section until the completion of the poll at such election. Learned counselfor the petitioner stressed that in view of the provision contained in section160 of the Representation of the People Act vehicles derequisitioned by theGovernment under sub-section (1) of section 160 could be released only onthe ground that they were engaged and were being used by a particularcandidate. It was urged that since Sri Yashpal Kapur, election agent ofrespondent no. 1, moved the District Election Officer for the release of thevshiclss, it should be inferred that the vehicles were engaged and were be-ing used in connection witli the election of respondent no. 1. The argumentsuperficially looking appears to be quite attractive, but it does not bear oata careful scrutiny. As already stated. Sri Da] Bahadur Singh first wrote aletter to the District Election Officer for the release of the vehicles. It was

:expressly stated in that letter that the vehicles had been engaged by theDistrict Congress Committee for the election work in the three Parliamen-

that the vehicles requi.,.. ~., —- -(1) thereof could not be derequisitioned unless -t was shown that they r.ad

E.L.R ] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 9 3

been engaged or werei being used by any candidate. Sri Dal Bahadur Singhhad, therefore, no option but to request Sri Yashpal Kapur to send a-letterto the District Election Officer in his name for tiie release of the vehicles.Tt cannot be lost sight of that even in his note (Exh. A-43) to Sri YashpalKapur Sri Dal Bahadur Singh expressly stated that the vehicles had beenengaged by the District Congress Committee. Towards the end of the letterit h mentioned :

"Aap se nivedan hai ki zila nirvachan adhikari ko ulita patraavashya likh dewen taaki teeno Lok Sabha kshettra ka karya chunao joki Zila Congress Committee ki ore se chal raha hai thap na ho jave."

As to why this request was made to Sri Yashpal Kapur only is alsoexplained by the note (Exh. A-43), for, it states that efforts had been "madeto contact the candidates of the other two constituencies but it could not bepossible and hence the request was made to Sri Yashpal Kapur. A perusalof the letter (Exh. A-42) sent by Sri Yashpal Kapur to the District ElectionOfficer would reveal that it was explicitly stated in that letter as well thatthe 23 vehicles mentioned in that letter had been engaged by the DistrictCongress Committee for election work in Rae Bareli, Amethi and RamSanehi Ghat constituencies. Tt was not mentioned even by implication thatthe vehicles had been engaged in connection with the election of the respon-dent no. 1. Sri Yashpal Kapur (R. W. 32) was cross-examined on this pointand he said that the vehicles specified in the list accompanying Exh. A-42were used in the three Parliamentary constituencies by the District CongressCommittee. He was not confronted by the provision contained in section160 of the Representation of the People Act and was not questioned specifi-cally as to why did he write a letter to the District Election Officer forrelease of vehicles if they had not been engaged and were not being used inconnection with the election w^rk of the respondent no. 1. I do not thinkthe documents Exhs. A-10, A-42 and A-43 can constitute a safe basis forconcluding that the 23 vehicles had been engaged or used in connection withthe election of the respondent no. 1. I concede that the letter Exh. A-42,sent by Sri Yashpal Kapur to the District Election Officer for release ofvehicles raises a suspicion that those vehicles or most of them were possiblyused in connection with the election of the respondent no. 1. This is allthe more so becaus; a::i-ord'n.^ to Sri Yashpal Kapur, he had only one'vehiclefor his exclusive use. No oilier vehicle, according to him, was exclusivelyused in connection with the election of respondent no. 1. It indeed doesnot appear very credible that, for a candidate like the respondent no. 1,only one vehicle would have been used exclusively for her election work.All the same the fact remains that suspicion, however strong it may be, can-not take the place of proof. I accordingly refuse to infer on the basis of theaforesaid three documents that the 23 vehicles mentioned in the letters (Exh.A-10 and Exh. A-42) were used in connection with the election work of therespondent no. 1.

Learned counsel for the petitioner next urged that the best way for thepetitioner to prove as to how many vehicles were hired by the D:strict Con-gress Committee in connection with the election work and for what amount,was to summon the election expenses of the District Congress Committee.I earned counsel pointed out that, with that end in view, the petitionersummoned Mohan" I.al Tripathi (P. W. 59) along with the election expensesand Sri Tripathi has filed a register (marked as no. 1) containing a state-ment of expenses. Learned counsel for the petitioner urged that help canbe obtained from the entries contained in that register about the amount spe«t

94 SHRI RAJ NARAIN V. SMT. INDIRA GANDHT [VOL. LVII

by the District Congress Committee over the vehicles used for election work.It will therefore, be necessary to refer to the evidence of Sri Mohan LaiTripathi (P. W. 59).

Sri Mohan Lai Tripathi (P. W. 59) is the existing General Secretaryof the District Congress Committee, Rae Bareli. He filed two registers and,for the same of easy reference only, they were marked as Register No. 1and Register No. 2. The Register No. 1, according to Sri Mohan Lai Tri-pathi, contains entries relating to the expenditure incurred in connectionwith the election in all the three Parliamentary constituencies within thedistrict of Rae Bareli. Sri Mohan Lai Tripathi, however further on showeda negative attitude in the witness box in order to prevent the entries con-tained in the register being proved according to law. He said that sincethe register was five years' old he could not say who had made the entries,It was then put to him whether the entries were in the hand of Sri GayaiPrasad Shukla and he said that even though he had seen Gaya PrasadShukla writing he could not say whether the entries in the register werein h.:s hand. The Register No. 1 contains initials of some person at twodifferent places in lieu of the entries having been checked. The witnesswas, therefore asked whether he could identify those initials and he said thathe could r.ot. Sri Mohan Lai Tripathi thus neither himself proved the en-rries in the register nor did he provide any information to enable the peti-tioner or the Court to summon some other person for proving those entries.

At the time of argument learned counsel for the respondent no. 1 mov-ed an application admitting four of the credit entries in the Register No. 1and for getting them marked as exhibits. Learned counsel for the petitionerurged that since four -of the entries have already been admitted by the res-pondent no. 1, it should be assumed that the respondent no. 1 lias" acceptedthe correctness of the entries and, consequently, there should be no hurdlein the way of the entire entries being taken into consideration. I am unableto accept thig argument. Register No. 1, technically speaking, is not thedocument or respondent no. 1. It was produced in Court at the instance ofthe petitioner as petitioner's document. It was open to the respondent no. 1to admit it in part, and that is what the respondent no. 1 has done by gettingfour of the entries therein exhibited. On that account it cannot be1 saidthat all the entries in the regif.er stand proved.

Since the register containing the four entries admitted by the respondentno. 1 is not proved, no help can be taken by the petitioner from that registerin order to prove the expenditure incurred by the District Congress Com-mittee on the hiring of the vehicles in question.

Learned counsel for the petitioner also urged that the respondent no. 1did not file in Court the original account of election expenses. It was fur-ther urged that en the own admission of Sri Yashpal Kapur the account wasmaintained by Sri Gaya Prasad Shukla. and Sri Dal Bahadur Singh wasoverall in charge of election work, but the respondent no. 1 withheld thosewitnesses, even though they had been summoned to give evidence. Accord-ing to learned counsel for the petitioner, this circumstance should lead to aninference being drawn against the respondent no. 1, and the inference wouldbe that the vehicles specified in para 17 (b) of the written statement, as alsoin the letters Exhs. A-10 and A-42, had been obtained on hire in connectionwith the election work and we used in connection with the election of therespondent no. 1. I arn afraid I cannot agree with this contention. It wasnecessary for the petitioner first to discharge the primary burden that layon him. He should have adduced evidence by examining the owners or the


drivers of some of the vehicles alleged to have been obtained on hire andshould have further adduced evidence to show that the vehicles were usedin connection with the election of the respondent no. 1 and not for party-propaganda. Without discharging that initial burden of proof, the petitionercannot ask the Court to draw an inference against the respondent no. 1 anthe ground that the expenses contained in register no, 1 were not admittedby her and that Gaya Prasad Shukla and Dal Bahadur Singh, who playedprominent role in the election were summoned and yet not examined.

I, therefore, conclude that the petitioner has failed to prove that anyexpenditure was incurred either by the respondent no. 1 or by the DistrictCongress Committee in obtaining any vehicles for doing work in connectionswith the respondent no. l's election.

2. Cost of petrol and diesel used by the vehicles specified in para 13(1) ofthe petition.

According to the petition, petrol and diesel costing Rs. 43,230 was usedby those vehicles. I have, however, already held that the petitioner has fail-ed to prove that the vehicles in question were used in connection with theelection of the respondent no. 1 and that the possibility of the vehicles havingbeen used only for party propaganda in all the three constituencies cannotbe excluded. According to the observations made by the Supreme Courtin the case of Kanwar Lai Gupta versus Amar Nath Chawla, (A.I.R. 1975Supreme Court 308). on which reliance is placed by the petitioner, a politi-cal party can incur any expenditure on the party work and that expenditurecannot be added to the election expenses of the candidatesponsored by that party, unless it is shown that the expenditurehad been incurred in connection with the election of the candi-date inasmuch as the candidate took advantage of it or participated therein.As also stated earlier, not an iota of evidence has been led by the petitionerin order to show what propaganda was being done from those vehicles orfor what purpose those vehicles were used. The respondent no. 1 of coursedid not visit the constituency except twice. It is not even suggested thatthe respondent no. 1 personally participated in the propaganda that was be-ing done from those vehicles or that the respondent no. 1 utilised thosevehicles in any other manner. Sri Yashpal Kapur was the election agent ofthe respondent no. 1 and there is no evidence even to show that Sri YashpalKapur in any manner participated in the propaganda that was being donefrom those vehicles of that he made use of any of those vehicles in anyother manner for the purposes of the election. The election campaign con-tinued for a fairly long time and people must have seen how and in whatmanner those vehicles were being used. Even if it was not possible for thepetitioner to give evidence in regard to each of the 23 vehicles, evidencecould be given at least in regard to some of them. This has not been done.Nor is there .any explanation for that omission. There can be no presump-tion in the circumstances of the case to the effect that the vehicles were actu-ally used in connection with the election of trie respondent no. 1. Consequ-ently any expenditure incurred over purchase of petrol for those vehiclescannot be added to the election expenses of the respondent no. 1.

3. Payments made to the Drivers of the Vehicles specified in para 13(1) ofthe Petition.

As already stated earlier, the petitioner alleged in the election petitionthat 32 vehicles had been hired and engaged by the respondent no. 1 but he

96 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVTl

adduced no evidence to prove it. The stand taken by him was that the ex-penditure incurred by the District Congress Committee on the vehicles hiredby it should be added to the election expenses of the respondent no. 1. Ac-cording to the respondent no. 1, only 23 vehicles had been hired by theDistrict Congress Committee and, according to the stand taken by the peti-tioner at the time of arguments, the expenditure incurred in making paymentsto the drivers ol the said 23 vehicles is in any case liable to be added to theelection expenses of the respondent no. 1.

While considering the first item of expenditure, I have already held tbatit is not proved that the said vehicles were in any manner used in connectionwith the election of the respondent no. 1 and that the possibility of thosevehicles having been used solely for party work during the election cannotbe excluded. In that view of the matter, any expenditure incurred in mak-ing payments to the drivers of those vehicles can by no means be addedto the election expenses of the respondent no. 1.

4. Repairing and servicing charges of the vehicles referred to above.

In view of my conclusion earlier that there is no evidence to prove thatthe said vehicles were used in connection with the election of the respon-dent no. 1, any amount spent over the repairing and servicing of those vehi-cles cannot be added to the election expenses of the respondent no. 1. It isneedless to dilate any further on this point.

5. Payments made to file workers engaged for the purpose of eledion pro-paganda.According to the allegations contained in the petition, a sum of Rs. 6.600

was spent in making payments to the workers engaged for the purpose ofdection propaganda. The allegation is of a bald nature. It does not dis-close as to what was the approximate number of workers engaged and atwhat rate they had been engaged. If the petitioner knew that a large num-ber of persons were engaged by the respondent no. 1, or his election agenton payment for doing election work, it should not have been impossibie torthe petitioner to disclose a few names out of those workers or to give someidea about the number of workers. This has not been done. When Sri Yasii-pal Kapur (R. W. 32). was cross-examined on this point, he denied that anyworkers had been enaaaed on oavment for doinp election work. Accordingto him, people worked voluntarily for the respondent no. 1. There beingno evidence to the contrary the statement made by Sri Yashpal Kapur can-not reasonably be discarded.

I accordingly find that the petitioner has failed to prove this item ofexpenditure as well.

6. Expenses of the erection of respondent no. l's polling camps near thepolling stations on ihe polling days.

According to the allegations in the petition, a sum of Rs. 10,000 hadbeen spent in erection of polling camps. It is however, not alleged in thepetition as to at what polling stations the respondent no. 1 had erected poll-ing camps of the nature which could cost any substantial expenditure. Theallegation is therefore, of a wholly bald nature. The workers of the peti-tioner must have beer, present at all the polling stations and there appearsno reason why the petitioner could not furnish some evidence to indicate asto what was the nature of the polling camps erected on behalf of the res-pondent no. 1 at those polling stations so that the Court could make anyassessment of the expenditure incurred in that connection, if at all, Sri

E.X.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 97

Yashpal Kapur, cross-examined on that point, said that he took round ofquite a large number of polling stations on the polling days and at manyof the polling stations there were no shatniyanas or kanats but dttris andjajims alone had been spread, which had been brought by the local people.He further said that at some polling stations shamiyanas and kanatas werethere, but they too were arranged by the local people. Question further, hesaid that he could not say if the District Congress Committee arranged forthe shamiyanas and kanats in the city, but so far as area was concerned,the arrangement was mads by the local people only.

The result, therefore, is that on the evidence- as it exists on record, it isimpossible to call out as to what was the nature of the polling camps erect-ed on behalf of the respondent no. 1 at the various polling stations. Ifshamiyanas and kanats had actually been used in erecting the polling campsa! any polling station, at how many of the polling stations such arrangementwas done. Assuming for a moment that even if the District Congress Com-mittee spent any money over the erection of polling camps, that expenditureis liable to be added to the election expenses of fee respondent no. 1. beingin a way connected with her election, there should be some evidence to showthe nature thereof and further the fact as to at how many polling stationsit was done. Unless this information is provided it would be pure specula-tion to form any idea about the number of the polling camps, the naturethereof and the expenditure incurred on the erection thereof. Such specula-tion to my mind is not permissible. I accordingly hold that the petitionerhas failed to prove the expenditure alleged to have been incurred over erec-tion of polling camps.

7. Expenses of the erection of rostrums for the public meetings o£ the res-pondent iso. 1 within the constituency on 1st of February, 1971 and:25th of February, 1971.

According to the allegation in the petition, a sum of Rs. 1,32,000 wasspent on this head. Learned counsel for the petitioner urged that since bar-ricading in the meeting forms part of the rostrum, as deposed tq by Sri Mohin-der Singh (R. W. 30\ the cost of barricading has also been included underthis head.

Now, so far as the barricading constructed at the place of the meetingis concerned, it is done by the State Government for the purposes of main-tenance of law and order, apart from the purpose of security. It is the firstduty of any Government established by law to maintain law and order. It isa matter of common knowledge that a very large number of people collectin order to see and hear the speeches of their Prime Minister, whoever he•or she may be. If proper arrangements for controlling of the crowds atsuch meetings are not made, there can be stampeding in the event of anydisturbance, and this can lead to greater trouble. It is, therefore, for con-trolling of the crowds that the Government breaks up the place of the meet-ings into segments by putting up barricades. Setting up of barricades doesnot facilitate in the Prime Minister delivering a speech. The PrimeMinister can do so even without it.

It is thus apparent that the barricades had been set up by the Govern-ment at its own expense in discharge of its normal duty. Consequently thatexpenditure cannot be added to the election expenses of the respondent no. 1.

This takes me to the expenditure over construction, of rostrums. It can-not be denied that the rostrumsi had been constructed by the Government for

98 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVH

the use of the respondent so that she could deliver speeches to the audiencesin her meetings from a commanding position and in an effective manner.The question, however, is whether the expenditure incurred by the StateGovernment would fall under section 77, even according to the interpreta-tion put on that section in the case of Kanwar Lai Gupta v. A mar NathChawla (supra). After the decision in that case, there is no doubt that ex-penditure incurred by a political party in connection with the election ofa candidate sponsored by it, as well as the expenditure incurred by friendsand admirers of that candidate! should be added to the election expensesof that candidate. This is so in order that a candidate may not circumventthe ceiling imposed by section 77 of the Act, by asking his political partyor his friends and admirers to do what he himself cannot do. The Govern-ment seldom incurs any expenditure in connection with the election of anycandidate. It does not, therefore, appear that the Legislature, while enact-ing section 77 of the Act, intended to include therein expenses incurred bythe Government as well. Assuming, however, that the expenditure incurredby the State Government in connection with the construction of rostrums isliable to be added to the expenses of the respondent no. 1, in view of thefact that the rostrums were constructed as a result of the tout programmessent from the office of the respondent no. 1 and she later made use of thoserostrums and did not disavow them, the total expenditure incurred by theState Government in that connection comes to Rs. 16,000. It may be ap-propriate to clarify the position further in this connection. The respondentno. 1 attended five meetings on the occasion of her visit on 1st of February,1971. One of those meetings was addressed at Bachchrawan. which doesnot fall within the constituency of Rae Bareli. Thus only four meetingsat which rostrums were constructed were addressed by the respondent no.- 1in her constituency on 1st of February, 1971. According to letter (Exh. 158)a sum of Rs. 1,600 was spent on construction of each of those rostrums.The total costs of the four rostrums thus comes to Rs. 6,400. Accordingto letter Exh. 201, rostrums had been constructed for six meetings address-ed by the respondent no. 1 on 25th of February, 1971. According to letterExh. 190, a total amount of Rs. 9,600 was spent on the construction ofthose rostrums. The total amount spent on the 10 rostrums comes toRs. 16,000. This amount will include the money paid by the District Con-gress Committee as their share of the cost of rostrums.

T, therefore, conclude that at best a sum of Rs. 16,000 can be addedto the election expenses of the respondent no. 1 as expenditure incurredon the construction of rostrums.

8. Expenses of loudspeaker arrangements.

According to the election petition, a sum of Rs. 7,200 was spent onthe expenses of loudspeakers in the meeting addressed by the respondentno. 1 on the 1st of February- 1971 and 25th of February, 1971. The letter(Exh. 177) seat by the Superintendent of Police, Rae Bareli to Sri Gay aPrasad Shukla, shows that arrangements for loudspeakers for the meetingsaddressed by the respondent no, 1 on 1st of February, 1971. was clone byhim. Presumably, he did so on behalf of the District Congress Committee.The letter (Exh. 193) shows that on the occasion of the visit of hte respon-dent no. 1 to Rae Bareli on 25th of February 1971 as well no expenditurehad been incurred by the Government. Learned counsel for the petitioner,however, urged that even though the expenditure on arrangement of loud-speakers had been done by the District Congress Committee, or by Sri GayaPrasad Shukla personally, the fact remains that the expenditure was directly

E.L R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 99

connected with the election cf respondent no. 1 and the latter participatedtherein by making use of those loudspeakers. Learned counsel stressed thatthe expenditure incurred over arrangement of loudspeakers should thereforebe added to the election expenses of the respondent no. 1. There can beno deny.'ng the fact that the loudspeakers had been installed for the use ofrespondent no. 1 and, consequently, I agree that, even though the expendi-ture was incurred in that connection by the District Congress Committee,it must be added to the expenses of the respondent no. 1. The: petitionerhas not led any evidence to show as to what was the number of loudspeakersused at every meeting. On 1st of February, 1971 »the respondent no. 1addressed meeiings >n the rural part of the constituency except one which

' appears to have been addressed by her in Raa Barei; City (vide tour pro-giamnies Exhs. 26 and 42). In view of the fact that a large number ofpeopie should have ga'hered in the meetings .of the respondent no. 1 becauseshe happened to be the Prime Minister of the country. It should be pre-sumed that at least 3 loudspeakers should have been used at each of themeetings. It would therefore follow that at the four meetings addressedon 1st of February, 1971 the total number of loudspeakers installed wouldhave been approximately 32. According to exhibit 193, loudspeakers werehired for the police lines at the rate of Rs. 10 per loudspeaker per day onthe aforesaid occasions. Expenditure over installation of loudspeakers inthe meetings of the respondent no. 1 can also be calculated on the samerate, and, thus calculated, the total cost of 32 loudspeakers would cometo Rs. 320. On 25th of February, 1971 the respondent no. 1 addressed 6meetings within the constituency. If 8 loudspeakers were installed at eachof these meetings, the total number of loudspeakers for all the six meetingswould come to 48. Calculating the expenditure incurred thereon at the rateof Rs. 10 per loudspeaker the total comes to Rs. 480.

Therefore the total amount incurred on installation of loudspeakers inthe meetings addressed by the respondent no. 1 on 1st of February, 1971and 25th of February, 1971 comes to Rs. 800.

Apart from it, electricity had also been provided for functioning of theloundspeakers at some meetings, as is apparent from the letter (Exlj. 147).Through this letter the Superintendent of Police, Rae Bareli asked the Presi-dent of the Pradesh Congress Committee to pay a sum of I?s. 1,151 as costof energy supplied for the functioning of the loudspeakers. From the letter(Exh. 146) it appears that this amount was remitted by the Pradesh CongressCommittee. This amount should be treated as amount spent in the installa-tion of the loudspeakers.

Adding the amount of Rs. 1,151 to the aforesaid amount of Rs. 800,the. total comes to Rs. 1,951.

etc. that are utilised for providing the temporary connection ire taken awayfay the department after the energy is disconnected. In (hat view of thematter, the amount spent over putting any poles for carrying the line tothe places of the meetings cannot be held to be expenditure within themeaning of that word.

la the result, therefore, a sum of Rs. 1,951, only should be added tothe election expenses of the respondent no. 1, being the expenditure incur-red in connection with the arrangement of loudspeakers in the meetings ad-dressed by the respondent no. 1.

100 SHRI RAJ NA-RAIN V. SMT. INDIRA GANDHI [VOL. LVII

9. Expenses of respondent no. l's transport by Air Force Planes on 1stof February, 1971 and 25th of February, 1971.

According to the allegations in the petition, a sum of Rs. 1,68,000 wasspent in this connection. In answer to issue no. 2, however, I have held thatnone of the two flights were made by the respondent no. 1 in connectionwith her election and that, on the contrary, the flights on both occasions wereparts of the general election tour of the country made by the respondent no.1. For the same reason I find that any expenditure incurred in the flightsmade by the respondent no. 1 on 1st of February, 1971 and 25th of Febru-ary, 1971 should not Be added to the election expenses of the respondentno. 1.

10. Expenses of Batricadfeg of the routes to the places of the Election Meet-ings on 1st of February, 1971 and 2Sth of February, 1971,

While answering issue no. 3, I have held that barricading along theroutes ihad been done by the State Government as part of its own dutyfor controlling the crowd and maintaining law and order. That expenditure

• cannot in any way be held to be connected with the election of the respon-dent no. 1. The expenditure incurred by the State Government in setting upbarricades along the routes by which the Prime Minister travelled on 1st ofFebruary, 1971 "and 25th of February, 1971 cannot therefore be added to herelection expenses.

11. Expenses on T. A, and D, A. paid to the members of the Policy Forcelining the routes em JSJ of February, 1971 and 25th of February, 1971.

Once I have concluded that barricading along the routes was done bythe Government in discharge of its own duties to control the crowd and tomaintain law and order, it is obvious that the members of the Police Forcewere also posted along the routes for the same purpose. Any amount paidto the' members of the Police Force for lining the routes on the aforesaiddates cannot be held to be expenditure incurred in connection with the elec-tion of the respondent no. 1.

Consequently, any amount spent by the State Government in payingT. A. and D. A. to (he members of the Police Force for their remainingon duty on 1st of February, 1971 and 25ih of February, 1971 cannot beadded to the election expenses of the respondent no. 1.

12. Expenses of motor transport for the conveyance of Respondent no. 1to the places of her election meetings on 1st of February, 1971 and 25thof February, 1971.

According to the allegation in the petition a sum of Rs. 2,000 was spentunder that head. According to the letter (Exh. 136), the' charge payablefor the car journey made by the respondent no. 1 was 75 paise per kilometer.Learned counsel for the respondent no. 1 worked out the distances coveredby the respondent no. 1 on 1st of February, 1971 and 25th of February,1971 within her constituency and, calculating the charges payable at the rate75 paise per kilometer, the figure arrived at by him comes to Rs. 232.50paise only. So Rs. 232.50 paise was payable in that connection. A copyof the chart prepared by Learned counsel for the respondent no. 1 washanded over by him to the Learned counsel for the petitioner and the latterhas not refused the correctness thereof.

E.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDIII 101

It should, therefore be accepted that the expenditure of Rs. 232.50paise only was incurred in providing transport to the respondent no. 1 on1st of February, 1971 and 25th of February, 1971.

Learned counsel for the petitioner urged that from ths evidence onrecord it transpires that expenditure was also incurred oil the telephoneconnection and telephone charges; pn the meetings addressed by Sri Yash-pai Kapur within the constituency during the period of election; on theelection material viz. pamphlets, poster^ etc., and on the lighting arrange-ments made for soifte meetings addressed by the respondent no. 1. -Ac-cording to Learned counsel, these expenses are also liable to be added tothe election expenses of the respondent no. 1. None of these expenses were,however, pleaded in the petition. In fact, till the commencement of thearguments in the case the respondent no. 1 could not even anticipate thatthe petitioner shall rely on these expenses for the purposes of his case. Itwi!i, therefore, be prejudicial to the interest of the respondent no. 1 if theaforesaid expenses are take into consideration. The submission made byLearned counsel for the petitioner is accordingly negatived.

To sum up, the only expenses that can possibly be added to the electionexpenses of the respondent no. 1 are :

1. Cost of construction of Rostrums. Rs, 16,000.002. Cost incurred in installation of loudspeakers, Rs. 1,951.003. Cost in providing car transport to the respondent no. 1. Rs. 232.50

Rs. 18.183.50

According to the return of election expenses of the respondent no. 1(Exh. 5), an amount of Rs. 12,892-97 paise was incurred over her electionexpenses. Adding the aforesaid amount of Rs. 18U83.5O to this figure ofRs. 12,892.97 the total comes to Rs. 31,976.47 paise, i.e. sufficiently belowthe prescribed limit of Rs. 35,000.

My conclusion, therefore, on Issue no. 9 is that the total amount ofexpenditure incurred or authorised by the respondent no. l%or her electionagent, together with the amount proved to have been incurred by. the partyor by the State Government in connection with her election, does not ex<ceed the prescribed limit, and therefore, the respondent no. 1 has not com-mitted any corrupt practice under section 123(6) of the Act.

Coming to the writ petition, since the petitioner has failed to prove thatthe expenses incurred by the respondent no. 1 or her election agent, togetherwith the expenses found to have been incurred by the political party viz.Congress (R) or the State Government, in connection with her election ex-ceed the prescribed limit, no ground is made out for inquiring into the viresof the Amending Act and the Writ petition should accordingly fail.

Issue no. 2 of the additional issues :

In para 2 of the petition it is alleged that the respondent no, l heldherself out as a prospective candidate from 22 Rae Bareli ParliamentaryConstituency, vvitlt fhe election in prospect, immediately after the dissolu-tion of the Lok Sabha on 27th December, 1970 av>d as such she was a candi-date from the1 said constituency on and from 27th December, 1970. Theplea of the respondent on that point is contained in para 1 and para

8—345 Elec. Com.'ND/81

102 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVI1

of the additional written statement. She denied therein that she held her-self out as a candidate from Rae Bareli Parliamentary Constituency and wasa candidate from that constituency from 27th December, 1970 onwards. Itwas further pleaded by her that she held herself out as a candidate on filingper nomination paper in Rae Bareli on 1st of February, 1971.

The question for consideration, therefore, is as to whether the respon-dent no. 1 held herself out as a candidate only on 1st of February, 1971,or she had held herself, out as & candidate on any date earlier than that.If so, from what date? * •

The plea of the respondent no. 1 that she held herself out as a candi-date from 22 Rae Bareli Parliamentary Constituency on 1st of February,1971, on riling her nomination papeir at Rae Bareli, has no legs to stand.There is over-whelming documentary evidence which pints to the conclu-sion that the respondent no. 1 had positively held herself out as a candi-date before that day.

Exh. 26 is the copy of a radiogram, dated 25th of January, 1971 sentby the Private Secretary of the respondent no. 1 to the Chief Secretary,U. P. Government, Lucknow, apprising him of the tour programme of res-pondent no. 1. According to this tour programme, the respondent no. 1had to file her nomination at Rae Bareli on 1st of February, 1971 at 12O'clock noon. Exh. 27 is a letter, dated 27th of January, 1971 sent bythe Assistant Secretary, U. P. Government to the various authorities, en-closing therewith a copy of this tour programme. According to that copy(fes well, the respondent no. 1 was to file her nomination paper at Rae'Bareli at 12.15 O'clock noon. Exh. 188 is copy of a letter sent by theSuperintendent of Police, Rae Bareli to the Superintendent of Police, Train-ing and Security Branch, Intelligence Department, U. P., dated 25th ofJanuary, 1971 enclosing therewith a copy of the D.O. letter of the samedate sent by him to D. I. G. Police, Lucknow, asking for police force. Inthe copy of that D. O. letter it is stated that the Congress Office at RaeBareli had indicated to him (Superintendent of Police, Rae Bareli) the tourProgramme of the respondent no. 1 as specified therein. According totnat tour programme, the respondent no. 1 was to file her nomination paperat Collectorate, Rae Bareli between 12 and 12.15 O'clock noon. RajKumar Singh (P. W. 56), is Secretary, Parliamentary Affairs of All IndiaCongress Committee. According to him, the tour programme of the PrimeMinister as leader of the party is prepared in the office of the All-IndiaCongress Committee. It is then sent to the Prime Minister's Secretariat andit is only after the tour programme is approved by the respondent no. 1that it is issued from there. The respondent no. 1 also during her cross-examination, conceded that the tour programme concerning the politicalworK is sent by the All-India Congress' Committee and that they are finalis-ed after her approval is obtained. She further conceded that the tour pro-gramme (Exh. 26) must have been issued after she had approved of it.

Since a tour programme was received from the office of the respondentno. 1, by the State Government at Lucknow on 25th of January, 1971 andsince a tour programme was also received in the Congress office at RaeBareli on the same day, as is apparent from Exhibit 188, and further sinceit was explicitly stated in those tour programme that the respondent no.1 would file her nomination paper at Rae Bareli on 1st of February, 1971at or about 12 O'clock noon, there appears no escape from the conclusionttiat the respondent no. 1 had held herself out as a candidate from RaeBareli Constituency at least some! time before 25th of January, 1971.


A reference may also be made at this stage to the statement on oathmade by Srimati Gandhi respondent no. 1 (R. W. 37). She deposed thatfinal decision for contesting election to the Lok Sabha from the Rae BareliParliamentary Constituency was taken by her on 1st of February, 1971 andthat she did not make any announcement or declaration before 1st ofFebruary, 1971 in that regard. Learned counsel for the respondent no. 1stressed that the statement made by the respondent no. 1 could not bedisbelieved. In fact he even suggested that while assessing the weight ofxhe evidence of the respondent no. 1, the fact of the high office held byher should not bd ignored. It should be conceded that when a personappears in Court as a witness and his evidence appears to be natural andprobable, the status and respectability attaching to him is also taken intoconsideration to lend further assurance to his testimony. The status andrespectability of the witness alone cannot, however, induce the Court to ac-cept his/her testimony, more so when he or she is himself/herself a partyto the proceedings! and interested in the result of the case. In such casesthe evidence of that person has to be assessed without in any manner be-ing assessed by the high office that he or she may hold. The evidence ofthe respondent no. 1 should therefore be assessed according to the estab-lished principles, like the evidence of any other witness without in any man-ner being influenced by her high office.

The respondent no. 1 stated in cross-examination that she took decisionto contest election from Rae Bareli after her arrival there and after she hadtalked to the President of the P.C.C. and the Workers of the area. Herattention was then invited to the tour programme (Exh. 26), dated 25th ofJanuary, 1971, which inter alia, mentioned that the respondent no. 1 wasto file her nomination paper at Rae Bareli on 1st of February, 1971. Shethen said that the! words "file nomination" appeared to have been addedin ink and, consequently, she could not say whether those words existedoriginally or not. Her attention was then invited to the tour programme(Exh. 43) and she then conceded that she could recollect that the tour pro-gramme approved by her included the filing of nomination paper by herat Rae Bareli at 11.50 a.m.. She however, still asserted that no decisionhad been taken by her on or about 25th of January, 1971 to file the nomi-nation paper for contesting election from Rae Bareli constituency. Shesaid that it was tentatively mentioned in the tour programme, so that ifshe decided to contest election from Rae, Bareli the nomination paper couldbe filed there on 1st of February, 1971 at 11.50 a.m. Now, this statementdoes not appear to me to be natural or probable. If no such decision hadreally been taken, there is no reason why it should have been explicitlymentioned in the tour programme that she would file her nomination paperat Rae Bareli on 1st of February, 1971. If she were eventually to takea decision on her arrival at Rae Bareli on 1st of February, 1971. she couldfile the nomination paper there without that fact being even tentativelymentationed in the tour programme, which was officially communicated tothe State Government. It is also worthy of notice that this fact was alsomentioned in the copy of the tour programme received in the CongressOffice at Rae Bareli. It can safely be inferred from the letter (Exh. 188)That the tour programme was received in the Congress Office at Rae Barelion or before 25th of January, 1971. If the respondent no. 1, had notdecided till 25th January, 1971 to contest election from Rae Bareli, whyit was so mentioned in the tour programme sent to the State Governmentand to the Congress Office at Rae Bareli that the respondent no. 1 shallfile her nomination paper there on 1st of February, 1971.


The respondent no. 1 said that she had several places in her mind andit was for this reason that she did not take a decision in the matter till 1stof February, 1971, on which date she went to Rae Bareli and had a talkwith the Congress workers there. It was, therefore, put to her whetherin the tour programme relating to any other district or place, issued fromher office, there was a mention of her filing the nomination paper fromthere, and she had to concede that no tour programme was issued from'her office indicating that she would file her nomination paper from anyplace other than Rae Bareli. The nomination paper could be filed onlybetween 1st of February and 3rd of February, 1971, if it were true thatthe respondent no. 1 had other places in her mind till 1st of February,1971, from where she contemplated to contest election, the tour programmescovering those places would also normally have been issued, and it shouldhave been tentatively mentioned in the tour programme as well as was men-tioned in the tour programme (Exh. 26) that she would file her nominationpaper there. The fact that in the tour programme (Exh. 26) issued fromthe office of respondent no. 1, it was mentioned that the respondent no. 1was to file her nomination paper at Rae Bareli, together with the fact thatno tour programme was issued indicating that she would file her nominationpaper from any place other than Rae Bareli, leaves no room for doubt thatthe respondent no. 1 had decided before 25th of January, 1971 to contestelection from Rae Bareli. The fact that a copy of the tour programmeindicating that fact was also received in ths Congress Office at Rae Barelion or about 25th January, 1971, further shows that the respondent no. 1,not only had formed a decision to contest election from Rae Bareli, butthat she had also conveyed that decision to the constituency. In fact eventhe tour programme (Exh. 26) received by the State Government was not tobe kept secret. It was conveyed to the relevant authorities and copies of thattour programme (Exh. 43) were inter alia, forwarded to the President, DistrictCongress Committee and Sri Gaya Prasad Shukla of the Kendriya CongressKaryalaya, Rae Bareli. The explanation given by the respondent no. 1 inregard to the mention in the tour programme (Exh. 26) about her filingnomination paper thus does not. bear any scrutiny.

It may not be out of place to add that the statement made by the res-pondent no. 1 that she had decided to contest election from Rae Bareli onlyafter her arrival there on 1st of February, 1971 and after her having laU.ecito the President of the P.C.C. and local Congress workers is also incor- is;.en;With her own pleadings. Para l{a) of her additional written statement readsas follows :

"That in fact there were offers, from other parliamentary constituenciesin India, requesting this respondent to stand as a candidate for theLok Sabha from those constituencies and a final decision in regardto the constituency yjas announced by the All India Congress Com-mittee only on January 29, 1971 and she only held herself out as acandidate on filing her nomination at Rae Bareli on 1st of February,1971 (underlining is by me)'".

The contents of para \{a) from beginning up to the words 'only on Janu-ary 29, 1971' were verified by the respondent no. 1 to be true on informa-tion received from Sri K. N. Joshi, Parliamentary Secretary of the All IndiaCongress Committee, New Delhi. Further a final decision about the candi-dature of respondent no. 1 to contest election from Rae Bareli Parliamen-tary constituency could not have been taken by the AH India CongressCommittee without the respondent no. 1 herself arriving at a decision in that


regard. The respondent no. 1 was, therefore, questioned on that point incross-examination. She first said that the Congress Party did not take anydecision about the constituency from which she was to contest the election.Her attention was then invited to para Ha) of the Additional Written State-ment and she said :

"There appears to be some mistake in the averment contained in thisparagraph of the Additional Written Statement. As L know, theAll India Congress Committee did not take any decision or makeany announcement regarding my candidature on January 29, 1971.Sri" K. N. Joshi, Parliamentary Secretary of the All India CongressCommittee did not. within my knowledge, make any announce-ment regarding my candidature on 29th of January, 1971."

She was then asked whether she received any information from Sri K. N.Joshi, Parliamentary Secretary of the All India Congress CommiUee, NewDelhi, to the effect that the final decision in regard to her constiaiency wasannounced by the All India Congress Committee on January 29, 1971. Aftergoing through the Additional Written Statement the respondent no. 1 re-plied that even though it was so stated therein, she did not recollect aboutit. She was then asked whether she could say with certainty that noannouncement was made by the All India Congress Committee on January29, 1971 about her constituency and she only replied that she did not knowwhether any such announcement was of was not made. Pressed further,she said that she had read the Additional Written Statement before signingit and that, to the best of her ability, she took care that whatever wascontained in the Additional Written Statement was true. She however,added that the language contained in the Additional Written Statement waslegal language which she found difficult to clearly understand. All thatI would say is that the statement made by the respondent no. 1 fails tosatisfactorily explain the inconsistency.

Learned counsel for the respondent no. 1, in a bid to explain the in-consistency, urged at the time of argument that the pleadings contained inpara \{<i) of the Additional Written Statement only mean that the final"decision taken by the All India Congress Committee was to leave thematter to the respondent no. ! for a decision being taken by her. Theargument is stated only to be rejected. If all that the All Ir<dia C'onaressCommittee had done was to have left the matter to be decided by therespondent no. 1, it could not be said that the All India Congress Com-mittee, had taken any decision, much less a final decision, about the consti-tuency. The explanation offered by learned counsel for the respondentno. 1 can also, therefore, be not accepted.

Reference may also be made hereto interrogatory no. 5 of -the seondset of interrogatories and the answer thereto given by Sri Jagpat Dubeythe Attorney of the respondent. Interrogatory no. 5 reads as follows—

"Whether the All Tndia Congress Committee decided your candidaturewithout having your approval? (If the answer is in the negative,on wh"t date did you give your approval for being a candidatefrom 22 Rae Bareli Parliamentary Constituency)".

The answer to this interrogatory is as follows—

"The decision of the All India Congress Committee was a tentativeone. It was open to respondent no. 1 to stand from anyconstituency, whether it was 22 Rae Bareli Parliamentary

1 0 6 SHRI RAJ NARAIN V. SMT. INDJRA GANDHI [VOL. LVII

Constituency or any other, and the All India Congress Committeewould not have objected to any decision by her. The question,therefore, of respondent no. 1 giving any formal approval to anydecision did not arise."

From the above it would appear that, till the stage of filing reply TOthe interrogatories, the respondent no. 1 did not deny that a decision hadbeen taken by the All India Congress Committee about her candidature.All that she said was that the decision was tentative and couid be changedby her. When the respondent no. 1 however, entered the witness boxshe took a different stand and said that so far as she knew no decisionabout her candidature was taken by the Al! India Congress Committee.When the attention of the respondent no. 1 was invited to the aforesaidreply given on her behalf, she again said that she had no knowledge if theAll India Congress Committee took even a tentative decision about herconstituency. Now, if she had no knowledge about any such decision,how and under what circumstances it was admitted in reply to theinterrogatories served on her, remains to unexplained.

In view of the pleadings contained in para l(a) of the AdditionalWritten Statement and in view of the reply to interrogatory no. 5, I haveno doubt that the All India Congress Committee did take a formal decisionabout the candidature of respondent no. 1 namely that she would contestelection from Rae Bareli.

The respondent no. 1 was the unquestioned leader of the Congress(R). The A. I. C. C. could not, therefore, have taken a decision aboutthe constituency of respondent no. 1 without the respondent no. 1 havinggiven out her own mind. This circumstance, together with the fact thatthe tour programme issued from the office of the respondent no. 1 on 25thJanuary. 1971. copies whereof had been sent not only to the Governmentbut also to the Congress Office at Rae Bareli, intimating that the respondentno. 1 shall file her nomination paper at Rae Bareli on 1st of February,1971. leaves no room for doubt that the respondent no. 1 held herself outas a candidate before 25th of January, 1971. The plea of the respondentno. 1 that she held herself out as a candidate for the first time on the 1stof February, 1971 is not established to be true.

Reference was also made by learned counsel for respondent no. 1 mthis connection to the statement on oath made bv Sri Yashpal Kapur(RW. 32) I shall deal with the evidence of Sri Yashpal Kapur,exhaustively when I record my finding on issue no. 1 (first set) and onAdditional issue no. 1. It should be sufficient at this stage to consideronly that part of the testimony of Sri Yashpal Kapur, which relates tothe point Under consideration. Sri Yashpal Kapur, stated that on thearrival of the respondent no. 1 at Rae Bareli Inspection House, themembers of the District Congress Committee. Rae Bareli, had an interviewwith her in which they requested her to contest election to the Lok Sabhafrom Rae Bareli. He further said that after having heard the membersof the District Congress Committee, the respondent no. 1 took Sri KamlapatiTripathi, aside and talked to him. He further said that the respondentno. 1 also talked to him, after having talked to Sri Kamlapati Tripathi,and it was thereafter that she announced that she had decided to contestelection to the Lok Sabha from Rae Bareli. The statement appears tobe too artificial to carry credence. In the first instance, in view of thefact that the tour programme had already been sent by the respondentno. 1 to the State Government as well as to the Congress Office at Rae


Bareli, intimating that she would file her nomination paper at Rae Barelion 1st of February, 1971, it is not understandable why the members ofthe District Congress Committee should have waited upon the respondentno. 1 in order to request her to contest election from Rae Bareli. Again,on the own admission of Sri Yashpal Kapur, Sri Kamlapati Tripathi andrespondent no. 1 had travelled together in the same plane from Delhi toAmausi. It is not disputed to the respondent no. 1 that Rae Bareii wasone of those places from where she intended to contest election. Sri Kamla-pati Tripathi was the President of the U. P. Congress Committee. There-fore, if respondent no. 1 had to talk to Sri Kamlapathi Tripathi about thepropriety of her contesting election from Rae Bareli, or anything connectedwith it, she could conveniently talk to him in the plane during the journeybetween Delhi and Amausi. Further, it was also admitted by Sri YashpalKapur, that the respondent no. 1 and Sri Kamlapati Tripathi, travelledin the same car from Lucknow to Rae Bareli. Therefore, even if therespondent no. 1 had not talked to Sri Kamlapati Tripathi, about anymatter connected with her election when she travelled in the plane withhim, she could have done so when she travelled with Sri Tripathi fromLucknow to Rae Bareli in the same car. In the face of thesecircumstances, it is not at all understandable why it should have becomenecessary for the respondent no. 1 to take Sri kamlapati Tripathi asideand talk to him, after she had talked to the members of the DistrictCongress Committee at the Inspection House, Rae Bareli, beforeannouncing her decision to contest the election from Rae Bareli. I haveno doubt in my mind that Sri Yashpal Kapur. made the aforesaid state-ment only to fortify the plea set up by the respondent no. 1 that she haddecided to contest election from the Rae Bareli only on 1st of February,1971 and not earlier than that.

Sri Yashpa! Kapur, was also confronted with the tour programme(Ex. 26 and Exh. 43), wherein it was explicitly stated that the respondentno. 1 was to file her nomination paper at Rae Bareli on 1st of February,1971. He, however, said that he still maintained that the respondent no. 1had not taken any decision before 1st of February, 1971 to contest electionfrom Rae Bareli. He was then questioned as to what was the basis ofthat Statement made by him and to that the witness replied :

"My reply that the respondent no. 1 had taken a decision :ocontest election from Rae Bareli Constituency on 1st of February,1971, is based on what happened in the Inspection House tha*day within my view".

1 have, however, already said that the statement made by Sri YashpalKaour, about what happened at the Inspection House, Rae Bareli on 1stof February, 1971 is not at all probable.

Sri Yashpal Kapur, was also confronted with the news item (Ex. 84A)published in the issue of 'Navjeewan', dated 15th of January. 1971, wherein,quoting the decision of the Congress Parliamentary Board, it was said thatthe respondent no. 1 would contest election from Rae Bareli and thatsitting members of Parliament in U. P. shall contest election from the sameconstituency from which they had been elected to the dissolved Parliament.The witness replied that he was not aware whether any such decision hadbeen taken by the Central Congress; Parliamentary Board, nor could hevouch whether the news item had been rightly published. Sri YashpalKapur, was examined as a witness in the case long after the election

108 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVil

was over and it does not appear probable that, till the date ;-f his examina-tion, he did not even know whether the Congress Parliamentary Board hador had not taken any decision of the nature reported in the news item(Exh, 84-A). It is also worthy of notice in this connection that, on hisown admission, the respondent no. 1 was at Delhi between 21st January,1971, and 26th January, 1971. He was not a stranger to the respondentno. 1. He had worked for quite a long time in the respondent no. S'sSecretariat and, on his own admission, the respondent no. 1 had suchconfidence in him that when he resigned in 1971. the respondent no. 1 in-sisted on his rejoining her Secretariat. In the contest of that associationbetween him and the respondent no. 1, the natural course of conduct onhis part was to have apprised the respondent no. 1, when lie met her atDelhi during the period between 21st January and 26th January, 1971 ofthe alleged decision of the Congress Parliamentary Board published in the'Navjeewan', dated 15th of January, 1971 and to have enquired from herwhether it'was true. Sri Yashpal Kapur conceded that during the peviodbetween 21st January and 26th January, 1971 he met respondent no. 1twice but did not ask her any thing about it. On the contrary, he statedthat the respondent no. I told him that leaders of several other States hadasked her to contest election from their States. The witness said thateven then he did not enquire from the respondent no. 1 as to wh:;t ni-dbeen decided by her. Now, it is not at ail probable that having cornsacross the next item (Exh. 84-A) at Rae Bareli and despite having metthe respondent no. 1 at Delhi twice thereafter, he would neither haveapprised the respondent no. 1 about the news item nor would have caredto know from her whether it was true or not.

For all the aforesaid reasons, no reliance can be placed on the state-ment of Sri Yashpal Kapur to conclude that the respondent no. 1 heldherself out as a candidate from Rae Bareli constituency for the first timeon 1st of February 1971.

The result, therefore, is that the plea set up by the respondent no. 1that she held herself out as a candidate for the first time on 1 st of February,1971 as a candidate from Rae Bareli Parliamentary Constituency has to bediscarded.

It is then to be considered as to when did the respondent no. 1 reallyhold herself out as a candidate.

The expression 'candidate' has been defined in section 79(6) of the Actas follows :

" 'candidate' means a person who has been or claims to have been dulynominated as a candidate at any election, and any such personshall be deemed to have been a candidate as from the time when,with the election in prospect, he began to hold himself out as aprospective candidate".

(Underlining by me).

The question as to when a person becomes a candidate within the mean-ing of section 79(6) of the Representation of the People Act came in forconsideration in the case S. Khader Sheriff appellant versus MunnuswamiVA.I.R. 1955 Supreme Court 775 at p. 777),' and it was observed :

"When, therefore, a question arises under section 79(M whether a per-son had become a candidate by a given point of time, what hasto be seen is whether at that time he had clearly and unambiguously


declared his intention to stand as a candidate, so that it could besaid of him that he had held himself out as a prospective candidate.That he has merely formed an intention to stand for an electionis not sufficient to make him a prospective candidate. That canonly be if he communicates that intention to the outside world bydeclaration or conduct from which it could be inferred that heintends to stand as a candidate."

The petitioner summoned from the All-India Radio the tapes (Exhs.129 to 131) of the Press Conference addressed by the respondtnt no. 1 on29th December, 1970. Sri P. Mathur, (P. W. 60), Station Director, All-IndiaRadio, Lucknow, produced the tapes before this Court. He also filed thetranscript (Exh. 132) of the Press Conference which he claimed to haveprepared with the assistance of the tape recorded in his presence. Thetape was however, played in Court in the presence of counsil fcr the parties,when Sri P. Mathur was still in the witness-box, to check whether the rele-vant portion of the transcript (sidelined by me) tallied with the tape, andit was found to tally, Sri P. Mathur (P. W. 60) also stated in cross-examina-tion that he identified the voice on the tape to be that of the respondentno. 1. The sidelined portion of the transcript of the tape record (Exh. 132)was read over to the respondent no. 1 when she entered the witness-box andshe too admitted it to be correct. The relevant question pat to the respon-dent no. 1 and the answer given by her in the press conference, accordingto the transcript (Exh. 132) are as follows :

"Q. A short while ago there was a meeting of the opposition leadersand there they said that the Prime Minister is changing her consti-tuency from Rae Bareli to Gurgaon.

P. M. No, I am not".

It is worthy of notice that in December, 1970, a Government formedby the opposition parties popularly known as S. V. D. Government, wasin the saddle in U. P. It was in that context that question was put to therespondent no. 1 {hat the opposition leaders were saying that she wouldnot contest election from Rae Bareli and that she would change her consti-tuency to Gurgaon. The answer made by the respondent no. 1 to my mind,therefore, did not mean any thing except that she was not going to changeher constituency and that she would contest the election from Rae Bareli.

When the respondent no. 1 entered the witness-box and the aforesaidquestion and answer were put to her by her own counsel in the examination-in-chief with a view to bring on record her explanation to it, she statedthat her reply did not 'necessarily' mean that she would not change herconstituency and that she only meant that she would not contest from Gur-gaon constituency. She was again questioned on that point in cross-exa-mination and she then stated :

"It is wrong to assume that while giving the reply marked B in thetranscript (Exh. 132) I conveyed that I was not changing my consti-tuency from Rae Bareli at all and emphatically held out that Iwould contest election again from Rae Bareli. In my opinionthere is no basis for this assumption."

I have given my very careful and dispassionate consideration to theaforesaid reply given by respondent no. 1 during her cross-examinationand I regret my inability to accept it. As I have already stated earlier,the question was put to the respondent no. 1 in a particular setting, namely

110 SHRI RAJ NARAIN V. SMT. INDrRA GANDHI [VOL. LVII

that the opposition Government was in power in the State of U. P. andthe leaders of that Government were saying that, presumably because oftheir being in power in U.P., the respondent no. 1 was changing her consti-tuency from Rae Bareli. It was a sort of challenge and was conveyed tothe respondent no. 1 in the press conference in the same form by a questionput by some press correspondent. The emphatic manner in which therespondent no. 1 replied to that question, saying 'No, I am not' cannotunder the circumstances be interpreted to mean anything except that sheconveyed that whatever the opposition leaders were saying was not correctand that she was not changing her constituency. It also deserves consi-deration in this connection that at the press conference mention was madeonly of two places viz. Rae Bareli (the original constituency) and Gurgaon(as prospective constituency). No other constituency was either named orsuggested. In that context the answer given by the respondent no. 1 couldmean and convey nothing except that she was not changing her consti-tuency and that she would contest election from Rae Bareli. If therewas a mention of some other constituency as well besides Gurgaon, therecould be some substance in the explanation sought to be given by therespondent no. 1 in Court that, while saying "No, I am not", she onlymeant to convey that she would not change her constituency from RaeBareli to Gurgaon and that she could yet change her constituency someother place.

To my mind, therefore, by making the aforesaid statement at the.press conference on 29h December, 1970 the respondent no. 1 clearly andunambiguously indicated to the outside world her declaration to contestelection from Rae Bareli and she should therefore be deemed to have beena candidate from that very date.

It may be appropriate at this stage to dispose of some technical pleasraised by learned counsel for the respondent no. 1, before proceeding fur-ther with this point. Learned counsel for respondent no. 1 urged that theelection should be in prospect when any person holds himself/herself outas a prospective candidate, so as to fall within the definition of the word'candidate'.as contained in section 79(b) of the Act. Learned counsel thenurged that the expression 'with the election in prospect' occurring in sec-tion 79(£>) should be construed to mean the commencement of the electioni.e. when a writ is issued in that connection. Reference was made by learnedcounsel for the respondent no. 1 to several cases in this connection: TheCounties of Elgin and Nairn Case (V O' M & Hp. l ) ; The Lichfield Case(V O' M & Hp. 27); The Borough of GreaA Yarmouth Case (V O' M & Hp.176) ; The Bodmin-Division of the County of Cornwall Case (V G' M & Hp.223); The Borough of Walsall Case (IV O' M & Hp. 123) and The Ber-wick-Upon-Tweed Division of the County of Northumberland Case (VII O'M & Hp. 1).

In the first instance, it cannot be called out from these cases that,according to rule laid down therein, the expression 'election in prospect'should be interpreted to mean that the election commences with the issueof a writ. The consensus as expressed in these cases appears to be thatelection commences when it is reasonably imminent. In the Counties ofElgin and Nairn Case it was observed at page 10 :

"For some reason, good or bad, the Legislature has confined th" en-actment to expenses which can be attributed to the 'conduct andmanagement of the election'; and these words, as it seems to me,at least suggest and contemplate an election, which is not in nubi-bus, but is reasonably imminent."


And again on page :

"..—the period of election which was to be conducted and mana-ged—was a period not at least much anterior, I will not say to thedate of nomination, but to the group or series of events whichimmediately precede the nomination, and which, as we all know,begin in the case of a general election with the announcement ofthe dissolution, and in the case of a bye-election with the an-nouncement of the vacancy."

In the Lichfield Division of the County of Stafford Case, Baron Pollock,J.s posed the following question :

"The question no doubt turns on when the election may be said tohave commenced."

After referring to Elgin's case, he said :

"I will not refer to the facts of it because it would only complicatethe matter, but I entirely agree with Lord M'Laren when he saidthat what is meant by 'an, election' is a definite election withinthe knowledge and contemplation of parties."

In the Borough of Great Yarmouth Case, Justice Channel said at page 138 :

"I quite adopt the view which has been put forward by other Judgesthat the time when the election is supposed, to commence may,for several purposes, be an important matter and that it certainlyis not limited to the commencement of the active part of the elec-tion by the occurrence of a vacancy or by the issue of the writ."

In the Bodmin Division of the County of Cornwall Case, Lawrence, J., saidat page 228:

"In view of our findings upon other charges it becomes unnecessaryto discuss this point at length, but I wish to say a few words,since, if it had been necessary to determine the point, which it isnot. I should have felt bound to come to the conclusion that thiselection began months before the issue of the writ, and that theexpenses of all these meetings ought to have been reiurned."

In Borough of Walsall Case it was said at page 125 :"I cannot think that the period of candidature or the period of agency

is to be limited, either by the date of the issuing of the writ, orby the day of nomination but T think that when an elections iscontemplated as probable in the course of a few months and it iswell recognised that to secure the election of a particular candi-date active steps must be taken and every exertion made at onceto secure that object, it cannot be reasonably said that there canbe no agency to take such steps, or to take such exertions, untilthe immediate approach of the election by the issuing of thewrit."

In the Berwick-Upon-Tweed Case it was said on page 30 :"Mr. Philipson was nominated candidate upon the 4th of November.

Tt is unnecessary to decide the exact day upon which the electionbegan, but having regard to the facts and to Mr. Philipson's ownadmission when he said, 'On October 19th, we knew there was


going to be an election' it is sufficient to decide that the electioncertainly began not later than October 19th, the day after thedeserves Coalition Party meeting at the Carlton Club in London,"

Apart from the fact that in none of the aforesaid cases it has beensaid that election shall be deemed to commence or be in prospect withthe issue of the notification, there is also the fact that the law in thiscountry is not precisely the same as in England. Election Tribunal Vellore,while deciding Munnuswami Gounder v. Khader Sheriff and others (4E, L. R. 233 at p. 292), said :

"In this respect the law in this country makes a significant departureand that departure, in our opinion, again emphasises the appli-cation of a vital democratic principle, in the light of differingconditions. We may here note, briefly, a feature of the politicalpractice in tttie United Kingdom which repeatedly colours andinfluences the English cases viz. the feet that there a person isoften adopted as a candidate by a political association, withoutany move on his behalf, until a particular stage when trie adop-tion is formalised by his consent."

Be it as it may,, in the case before us, the election became in prospectimmediately after the dissolution of the Lok Sabha on 27th December,1970. I do not think this view is inconsistent either with the observationsmade in any of the English decisions cited by learned counsel for therespondent no. 1 or any of the Indian decisions. In the case KrishnaKant v. Banmali (A. I. R. 1968 Orissa 200), a declaration was made bythe Home Minister, Government of India on 10th of December, 1965, post-poning general election of Orissa Legislative Assembly till the General

\ Elections to be held early in 1967. On 20th December, 1965 the ElectionCommission communicated the aforesaid decision of the Government ofIndia to the Chief Electoral Officer, Orissa. The life of the Orissa Assemblywas thereafter extended till 1st of March, 1967. It was observed that the

. election was in prospect by 18th of June, 1967, that is long before thej extended term of the Assembly came to an end.I • '

'• The contention raised by learned counsel for the respondent that' the election was not in prospect when the respondent no. 1 made the earlier; mentioned statement in her press conference on 29th December, 1970 can-i not therefore, be accepted. As stated earlier, the statement made by the[ respondent no. 1 at her press conference on 29th December, 1970, by itself\ constitutes sufficient proof of the fact that she held herself out as a candi-

date from Rae Bareli Constituency with effect from that date.

' It will, however, not be futile to refer to a few more circumstances; which fortify this conclusion.

| In order to find what did the respondent no. 1 convey by making theaforesaid statement, it will be of some relevance to know as to how that

' statement was commonly .understood. Exh. A-17 is the issue of the'National Herald' dated 30th December, 1970. The news item relatingto the press conference addressed by the respondent no. 1 on 29th Decem-ber, 1970 was published in this newspaper with the Head line "PrimeMinister not changing her constituency". Further on the news item con-tains the synopsis of the question put to the respondent no. 1 and the replygiven by her. Exh. 81 is the issue of the 'Statesman' dated December 30,


1970. The Headlined news item in this newspaper is "No change in Con-stituency". Further on the news item said:

"The Prime Minister denied at the outset whether she intended 10contest the coming election for the Lok Sabha from Gurgaoa andnot Rae Bareli."

Exh. 85 is the issue of the 'Indian Express' dated 30th December, 1970.The headline of the news item in this newspaper was:

"Rae Bareli is constituency."

Exh. 92 is the issue of the 'Hindustan Times' dated December 13, 1970.The headline of this newspaper also was :

"No Shifting of seat."

Thereafter the relevant portion of the news item reads as follows :"The Prime Minister denied that she was thinking of shifting her

constituency from Rae Bareli to Gurgaon.

'No I am not' she said when correspondent asked whether it wastrue as some opposition leaders were saying that she contemplateda change in her present constituency."

It will thus appear that almost every important newspaper in the countryunderstood the statement made by the respondent no. 1 at her press confe-rence to mean that she was not changing her constituency. It may alsono i be out of place to add that no contradiction to any of the aforesaidnews items was issued either from the secretariat of the Prime Ministeror from the A.I.C.C.

There is then the evidence of S. Nijilinsappa (P. W. 14). Sri ArjunSingh Bhadoria (P. W. 15). Sri S. P. Lalaviya (P. W. 36). Sri KarpooriThakur (P. W. 37), Ram Saran Das (P. W. 38), Sri Banarsi Das (P. W. 40)and L. K. Advani (P. W. 44). Though they belong to opposition partiesthe fact remains that all of them are public workers of some reputation.Each one of them stated on oath that the statement made by the respon-dent no. 1 at the press conference on 29th December, 1970 was construedby them to mean that the respondent no. 1 was not changing her consti-tuency.

Yet another thing which is worthy of notice is that right after thepress conference, held by the respondent no. 1 on 29th December, 1970,important leaders of the Congress (R) started pouring into the constituency.Ram Kumar Singh (P. W. 42), stated that Raja Dinesh Singh, then aMinister in the Central Government, visited Rae Bareli on 5th of January,1971. The fact that Raja Dinesh Singh did visit Rae Bareli on 5th Janu-ary. 1971, as deposed by Ram Kumar Singh, was not denied on behalfof respondent no. 1, as would appear from the following question put toRam Kumar Singh in cross-examination—

Q. "I suggest to you that Raja Dinesh Singh was only investigatingthe possibility whether the respondent ao. 1 should or should notfight election."

On 7th January, 1971 Sri Gulzari Lai Nanda and Sri Yashpal Kapur cameto Rae Bareli, a fact which is admitted to the respondent no. 1. On 17thof January, 1971 Sri Chandra Shekhar another important leader of Congress(R) visited Rae Bareli, as deposed by Ram Kumar Singh (P. W. 42). It is

114 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVIi

worthy of notice that it was not suggested to Ram Kumar Singh in hiscross-examination that Chandra Shekhar did not visit Rae Bareli and thathe was making a wrong statement in that connection. On the contrarythe suggestion made to him was that it was wrong that Sri Chandra She-khar in his speech said anything about the candidature of respondent no. 1.Ram Kumar Singh denied that suggestion. It was then suggested to himthat Chandra Shekhar had only stated that Congress (R) as a party shouldbe successful in the election. It should, therefore, be accepted that ChandraShekhar also visited Rae Bareli on 17th January, 1971. On 18th and 19thJanuary, 1971 Professor Sher Singh, another Minister of the Governmentof India, visited Rae Bareli. It cannot be accepted that all these leadersof Congress (R) were visiting Rae Bareli for nothing. To my mind that•circumstances, together with the other circumstances already mentionedearlier, is also a pointer to the conclusion that the respondent no. 1 hadheld herself out as a candidate from Rae Bareli constituency on 29thDecember, 1971 and the leaders of the Congress (R) were visiting RaeBareli as part of the election campaign of the respondent no. 1.

Learned counsel for the petitioner also urged that the fact that thepetitioner was set up as a candidate to contest election against the respon-dent no. 1 in the early part of January 1971 ; and the fact that the respon-dent no. 1 while delivering a speech at Coimbatore criticised Raj Narainand said that the candidature of Raj Narain had been sponsored for mud-slinging against her, also lend support to the fact that the respondent no. 1had declared herself as a candidate on 29th of January, 1971. In regard tothe first circumstance, learned counsel referred me inter alia to the evidenceof Ram Saran Das (P. W. 38), Sri Karpoori Thakur (P. W. 37) and Bartarsi©as (P. W. 40). Ram Saran Das said that he issued a statement on 20thof January, 1971 that the petitioner shall contest election to the parliamentfrom Rae Bareli. He filed the issue of the 'Pioneer' dated 11th January,1971 (Exh. 78) and the issue of the 'National Herald', of the same date(Exh. 80) in which that statement was published. Sri Banarsi Das (P. W.40) said that the leaders of the opposition parties met at the residence ofSri C. B. Gupta at Lucknow in 1st or 2nd weeE of January, 1971, and adecision was then taken to set up the petitioner as a candidate againstthe respondent no. 1. Sri Karpoori Thakur (P. W. 37) deposed that in1970-71 he was Chairman of All India Sanyukta Socialist Party. He fur-ther said that on 18 th of January, 1970, in a meeting attended by severalparties, he gave his concurrence to the decision that the petitioner maycontest election from Rae Bareli against the respondent no. 1. In regardto the second circumstances, learned counsel referred me to the issue ofthe 'National Herald' dated 20th January, 1971 (Exh. 82). This newspaperwas put to the respondent no. 1 during her cross-examination and sheadmitted that she could have said all the things mentioned in this newsitem. The news item (Exh. 82) in the 'National Herald' dated January 20,1971 was thus proved. Learned counsel stressed that unless the petitionerhad held herself out as a candidate from Rae Bareli constituency there washardly any occasion for her to have said at Coimbatore (as reported inExh. 82) that the candidature of Raj Narain from Rae Bareli had beensponsored by the front parties for maximum mud-slinging against her. Theleast that can be said on. the basis of the two circumstances is that therespondent no. 1 held herself out as a candidate sometime before 10thJanuary, 1971 otherwise there was no occasion for Ram Saran Das havingissued a statement that the petitioner shall contest election from Rae Bareliagainst respondent, and for the respondent no. 1 having said at Coimbatorethat Raj Narain had been chosen as a candidate from Rae Bareli for mud-slinging against her.


Therefore, without dilating any further, I conclude that it has beenproved beyond doubt that the respondent no. 1 held herself out as a candi-date from Rae Bareli Parliamentary Constituency on 29th December, 1970.Issue no. 2 of the additional issues is answered accordingly.

Issue no. 3 additional issues:In para 5 of the petition it is alleged that Sri Yashpal Kapur was a

Gazetted Officer in the Government of India holding the post of an Officeron Special Duty; that the respondent no. 1 obtained/procured the assistanceof Sri Yashpal Kapur for the furtherance of her election prospects; andthat Sri Yashpal Kapur organised the election work of the respondent no.1 in her constituency during the entire period commencing from 27thDecember, 1970 till the declaration of the result.

In para 5 of the written statement the respondent no. 1 admitted thatSri Yashpal Kapur was a Gazetted Officer in the Government of India hold-ing the post of Officer on Special Duty in the Prime Minister's Secretariat.She, however, pleaded that the said Sri Yashpal Kapur submitted his resig-nation from the aforesaid post by a letter dated 13th January, 1971, thatthe President was pleased to accept his resignation with effect from 14thJanuary, 1971, and that Sri Yashpal Kapur ceased to be in the service ofthe Government of India from that date. Respondent no. 1 denied thatshe procured or obtained the assistance of Sri Yashpal Kapur for the fur-therance of her election prospects while he was in the service of theGovernment of India.

In para 2(a) of the Additional Written Statement the respondent no. 1further pleaded that Sri P. N. Haksar, the then Secretary to the Prime Mini-ster, who had the authority to relieve Sri Yashpal Kapur, informed himon 13th January, 1971, on receipt of the resignation, that the resignationwas accepted and that formal orders will issue in due course. Accordingto the plea set up in the Additional Written Statement, the services of SriYashpal Kapur stood terminated as a result of his resignation with effectfrom time and date mentioned in the letter of resignation and that the sub-sequent notification issued in the name of the President of India was amere formality.

In view of the aforesaid pleadings, the question formulated for consi-deration is whether Sri Yashpal Kapur continued to be in the service ofthe Government of India after 14th of January, 1971, and if so, till what-date.

Sri Yashpal Kapur (R. W. 32) made a statement on oath that, afterhaving a talk with the respondent no. 1, he submitted his letter of resigna-tion to Sri P. N. Haksar on 13th of January, 1971. The respondent no. 1(R. W. 37) also deposed that in the second week of January, 1971, SriYashpal Kapur one day expressed a desire to resign from his post andshe then asked him to consider over the matter again. She said thaton 13th of January, 1971 Sri Yashpal Kapur again visited her and saidthat he had reconsidered the matter and was clear in his mind that hemust resign from the post to which she agreed. She then asked Sri Yash-pal Kapur, to go to Sri P. N. Haksar, in order to complete the forma-lities. Sri P. N. Haksar (R. W. 1) deposed that on 13th of January, 1971,Sri Yashpal Kapur telephoned to him near about 10 or 11 a.m. "that hewanted to resign from his post and he then directed Sri Yashpal Kapurto send his letter of resignation in writing to him and also to meet him.


Sri Haksar, further said that within an hour Sri Yashpal Kapur came to hisoffice with a letter of resignation duly signed by him and submitted thesame. Learned counsel for the petitioner urged that no document hasbeen produced by the respondent no. 1, in which the resignation letter sub-mitted by Sri Yashpal Kapur may have been entered, to show that it wasactually presented on 13th of January, 1971. On this basis learned counselurged that it should not be accepted that the resignation letter was actuallypresented on 13th of January, 1971. According to him,-the resignationwas presumably prepared and submitted at some later stage and was ante-dated in order to make it appear that it was presented on 13th January,1971. I do not think that, merely for the reason that no register etc. hasbeen brought on record to indicate that the resignation letter was presentedby Sri Yashpal Kapur, on 13th January, 1971, the statement on oath madeby the respondent no. 1 (R. W. 37), the statement of Sri Yashpal Kapur(R.W. 32) and the statement of Sri P. N. Kaksar (R. W. 1) can be dis-carded as untrue. Learned counsel for the petitioner could not point outany infirmity in the evidence of the aforesaid witnesses, so far as it relatesto the presentation of the resignation letter on 13th of January, 1971. There-fore, relying on the evidence of the respondent no. 1 (R. W. 37), Sri Yash-pal Kapur (R.W. 32) and Sri P. N. Haksar, I accept that Sri YashpalKapur had submitted his letter of resignation in the office of Sri P. N.Haksar on 13th of January, 1971.

The question, however, is when did the resignation submitted by SriYashpal Kapur take effect.

The fact that Sri Yashpal Kapur was a Gazetted Officer in the Gov-ernment of India holding the post of Officer on Special Duty in the Secre-tariat of the respondent no. 1 is conceded in the written statement filedby respondent no. 1. Sri N. K. Seshan (P. W. 53), Private Secretary tothe Prime Minister, also stated that the designation of Sri Yashpal Kapur,before he tendered his resignation, was 'Officer on Special Duty' and thatit was a Gazetted post equivalent in rank to. that of an Under Secretarydrawing the maximum pay. It was admitted before me on both handsthat the Central Civil Services (Temporary Service) Rules, 1949 were appli-cable to him. Rule 5 of the said Rules, in so far as it is relevant forour purposes, reads as follows :

"5(fl). The service of a temporary government servant who is not inquasi-permanent service shall be liable to termination at any timeby notice in writing given either by the government servant totrie appointing authority, or by the appointing authority to thegovernment servant.

(b) The period of such notice shall be one month, unless otherwiseagreed to by the Government and by the government servant :

Provided that the service of any such government servant may be ter-minated forthwith by payment to him of a sum equivalent to theamount of his pay plus allowances for the period of the noticeor as the case may be, for the period by which such notice fallsshort of one month or any agreed longer period."

Sri S. K. Krishnan (R. W. 5), Director, Department of Personnel Admi-nistrative Reforms, filed O. M., dated 6th May, 1958 (Exh. A-25) containinginstructions regarding resignations and the acceptance thereof. It is interalia stated therein that a resignation becomes effective when it is accepted

E.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 1 1 7

and the officer is relieved of his duties. It further states that 'where aresignation had not become effective and the officer wishes to withdrawit, it is open to the authority, which accepted**the resignation, to acceptor to refuse the request for such withdrawal.'

In view of the fact that Sri Yashpal Kapur held a Gazetted post in. theGovernment of India; and further in view of the Central Civil Services(Temporary Service) Rules, 1949, and the instructions (Exfa. A-25), it isapparent that Sri Yashpal Kapur could not cease to be a government ser-vant unless an order had been passed accepting the letter of resignationsubmitted by him. So far as the statement of the respondent no. 1 (R.W.37) is concerned, she only deposed that after Sri Yashpal Kapur had ex-pressed a desire TO her that he wanted to resign from his post, she directedhim to go to Sri P. N. Haksar to complete the formalities. No doubt,she also stated that Sri P. N. Haksar later told her that the resignation ofSri Yashpal Kapur, had been accepted. That is, however, evidence in thenature of hearsay which should not be attached much importance. SriYashpal Kapur (R. W. 32) did not state that any order was passed in hispresence accepting his letter of resignation. The evidence of Sri P. N.Haksar on this point is rather interesting. In the examination-in-chiefhe stated that when Sri Yashpal Kapur met him in his office on 13thof January, 1971 and submitted his resignation, he said to Sri YashpalKapur that he was a free man straightaway and that his resignation wasaccepted. He was then questioned in cross-examination whether it is per-missible to appoint a government servant by word of mouth and to dispensewith his services by word of mouth, and to that he replied :

"I am not aware of any rule under Vhich it is permissible to makeappointments by word of mouth. In my opinion, the servicesof a temporary Government servant can also be terminated byword of mouth, to be later followed by an order in writing."

It was then put to him whether it was the practice prevalent in theoffices of the Government of India and he replied :

"I have held charge of large and important offices both inside thecountry and abroad and this is the practice I have followed andthat practice has never been questioned so far".

The aforesaid statement made by Sri P. N. Haksar is not at all under-standable to me. Appointment of person in Government offices, more soto Gazetted posts, as well as termination of their services, is now governedby statutory rules, and the appointing authorities have to act under thoserules in order to appoint a government servant and in order to dispensewith the services of a government servant. It is the implied mandate ofthe rules that there should be an order in writing terminating his services.In the absence of any rules, appointing and removing of government ser-vants by word of mouth cannot be imagined. Needless to say that SriHaksar expressed his inability to mention any rule under which it waspermissible to appoint people and to remove them by word of mouth. Thestatement appears to have been made only to fortify the piea set up bythe respondent no. 1 in the additional written statement regarding oral(acceptance of the letter of resignation. It will not be out of place tomention in that connection that the respondent no. 1 filed her written state-ment on or about 2nd August, 1971 (the written statement was verifiedon 2nd August, 1971). The additional written statement was filed on orabout 27th August, 1972 (it was verified on that day). The plea of oral


118 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVlI

acceptance of resignation was not set up in the original written statement.It was for the first time set up in the additional written statement whichwas filed after a lapse of one from the date on which the original statementwas filed. The plea, therefore, appears to be an afterthought.

Since Sri P. N. Haksar stated that verbal orders had to be followedby orders in writing, he was questioned whether any order in writing waspassed on the letter of resignation submitted by Sri Yashpal Kapur on 13thJanuary, 1971 and he said that he was not aware of it. He was thenquestioned whether he ever sent for the letter of resignation in order tosee if any order in writing had been passed thereon or not, and to thathe also replied that he did not remember. The point was pressed furtherm cross-examination as would appear from the following question andanswer :

"Q. You said that a verbal order is always followed by an order inwriting. You were the appointing authority of the O. S. D. Didyou at any stage, as Secretary and appointing authority of theO. S. D., make sure after 13th of January, 1971 that an order inwriting had been passed in confirmation of the order that hadbeen passed by you verbally?

A. I do not recollect at the moment whether the letter of resignationwas at any stage recalled by me to make sure whether any orderin writing had been passed."

Further on Sri P. N. Haksar said :"I must have passed some grrder in writing on the letter of resignation

of Sri Yashpal Kapur, but I do not today remember as a matterof fact whether I did or did not pass the order/^ (Underlining isby me.).

The aforesaid statement made by Sri P. N. Haksar speaks for itselfand hardly calls for any comment. Needless to say that it cannot be heldfor any moment on the basis of the statement made by Sri P. N. Haksarthat any order in writing was passed on the letter of resignation of SriYashpal Kapur till the date on which an order accepting the resignationwas sent for being notified in the Gazette. In other words, the only orderon record which can be said to have been passed on the letter of resignationof Sri Yashpal Kapur is that which is contained in the notification (Exh.A-8) dated 25th of January, 1971. The letter of resignation of Sri YashpalKapur was in the custody of the respondent no. 1, and Sri P. N. Haksarwas the best person to know if any order accepting the resignation hadbeen passed prior to 25th of January, 1971. Since, no evidence, oral ordocumentary has been brought on record in order to show that any orderin writing had been passed on the letter of resignation of Sri YashpalKapur prior to 25th of January, 1971 it should be held that an order waspassed on the letter of resignation only on 25th of January, 1971 acceptingthe same.

It is true that, according to the Gazette notification (Exh. A-8). theresignation of Sri Yashpal Kapur had been accepted with effect from 14 thJanuary, 1971. It cannot, however, be ignored that the order acceptingthe resignation was passed on 25th of January, 1971. Till that order waspassed the status of Sri Yashpal Kapur continued to remain that a Gov-ernment servant despite the fact that when that order was passed it wasgiven retrospective effect so as to be valid from 14th of January, 1971.

JE.L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI

The question as to when does a resignation take effect has come infor consideration in quite a few cases. In case Ram Murti versus SumbaSardar and others (2 Election Law Reports 331) one of the respondentswas a teacher in a school and therefore held an office of profit. He tender-ed an unqualified resignation of his office on 19th of October, 1951. Hewas intimated that he could not be relieved until a substitute was available.He then applied for one month's leave on medical certificate on 6th Novem-ber, 1951 and ceased to work. On 10th November, 1951 he filed hisnomination paper. His resignation was accepted on 14th January, 1952.It was held that the respondent did not cease to hold his office by tenderinghis resignation or by ceasing to work and was unqualified to stand forelection on 10th of November, 1951. The following observation containedin that case at page 336 appears to be material :

"The point material for consideration now is if the submission ofresignation by the respondent even without its acceptance by theauthorities tantamounts to cessation of service. Article 310 of theIndian Constitution is that except, as expressly provided by theConstitution, every person who is a member of a civil service ofa State or holds any civil post under a State holds office during

> the pleasure of the Governor. If a person is to hold office duringthe pleasure of the Governor or the Union as the case may beit is impossible to think that the person holding the office shallhold it at his pleasure. The respondent no. 1 as the holder ofa post under the State was, therefore, not free to cease the serviceat his pleasure so long as he held the post under the State."

In case Bahori Lai Paliwal versus District Magistrate, Bulandshahr,[A.I.R. (1956) 511 F.B.] the same question arose for considerationqua the Chairman, Town Area Committee and it was observed :

"In certain cases a resignation may be effective as soon as it is deli-vered to the proper authority. In other cases it may not be effectivetill it is accepted by that authority. In voluntarily organisationslike clubs a person is free to be member and, unless the contraryis laid down in the rules of the association, he is free to resignat any time he likes."

Thereafter reference was made to Halsbury's Laws of England. Siiiwaid'sEdition, Vol. V, p. 61 and the Court proceeded to say :

"But in corporation created by Statute for the discharge of publicfunctions a member may not have an absolute right to resign atwill, because the law may cast a duty upon the person electedto a public office to act in that office in the public interest."

The Court cited with approval the following observation from the deci-sion of the Supreme Court of the United States in Edwards M. Edwardsversus United States [(1880) 26 L. E. 314 (C)]:

"In England a person elected to the Municipal office was obliged toaccept it and perform its duties and subject himself to a penaltyby refusal. An office was regarded as a burden which the ap-pointee was bound, in the interest of the community and goodGovernment, to bear. And from this it followed of course that,after an office was conferred and assumed, it could not be laiddown without the consent of the appointing power.


This was required in order that the public interests might suffer noinconvenience for the want of public servants to execute thelaws To complete a resignation it is necessary that thscorporation manifest their acceptance of the offer to resign, whichmay be done by an entry in the public books, or electing anotherperson to fill the place treating it as vacant."

It was held in the case that since the Chairman had withdrawn the resigna-tion before its acceptance by the District Magistrate, there was no lightleft in the District Magistrate to accept the resignation even though itwas unconditional.

In the case Rai Kumar versus Union of India (A.I.R. 1969 SupremeCourt 180) it was observed :

"Termination of an employment order passed by the Government doesnot become effective until the order is intimated to the employee.But where a public servant has invited by his letter of resignationdetermination of his employment, his services normally standterminated from the date on which the letter of resignation isaccepted by the appropriate authority and, in the absence of anylaw or rule governing the conditions of his service to the contrary,it will not be open to the public servant to withdraw his resignationafter it is accepted by the appropriate authority. Till the resigna-tion is accepted by the appropriate authority in consonance with therules governing the acceptance, the public servant concerned haslocus paenitentiae but not thereafter."

The view expressed by the Supreme Court in the aforesaid case RajKumar versus Union of India was reiterated when the present case went upbefore the Supreme Court Raj Narain versus Smt. Indira Nehru Gandhi,(A.I.R. 1972 Supreme Court 1302).

On the basis of the declaration of law in the aforesaid decisions ifcan be said that Sri Yashpal Kapur continued to remain in the service ofthe Government of India till 25th of January, 1971, on which date theorder accepting his resignation was passed. According to the dicta laiddown in those cases, till 25th of January, 1971 Sri Yashpal Kapur couldeven ask for the withdrawal of his resignation. The fact that by the orderdated 25th of January, 1971, the order accepting resignation was given effectfrom 14th of January, 1971, cannot lead to the conclusion that Sri YashpalKapur ceased to be a Government servant with effect from 14th of January,1971.

Learned counsel for the respondent no. 1 then referred me to that partof the statement made by the respondent no. 1 (R. W. 37), wherein she statedthat on 13th January, 1971 Sri Yashpal Kapur visited her and said fhathe had reconsidered the matter and was clear in his mind that he mustresign, whereupon the respondent no. 1 said to Sri Yashpal Kapur thathe should go to Sri P. N. Haksar to complete the formalities. Learnedcounsel urged that this virtually amounts to tendering of resignation byShri Yashpal Kapur orally to respondent no. 1. Learned counsel referredme to the meaning of the expressions 'Mode of resignation' and 'Mode ofacceptance' from Corpus Juris Secundum in order to contend that a resig-nation can be tendered orally and can be accepted orally. I do not thinkthe argument carries any force. While defining 'Mode of resignation', itin also mentioned in the Corpus Juris Secundum :

"Where no particular mode of resigning an office is provided by consti-tutional or statutory requirements, no formal method is necessary;


it may be by parole or it may be implied. A mode of resignationprescribed by statute generally is exclusive." (Underlining is byme).

Similarly while defining the expression 'Mode of acceptance' it is alsomentioned in the Corpus Juris Secundum:

"Where no particular mode of accepting a resignation is provided byConstitution or Statute, no formal mode of acceptance is necessary,and it may be by parole, or it may be shown by performance ofan official act which could not be legally performed unless theresignation was accepted." (Underlining is by me).

I have already pointed out earlier that in the matter of resignation andtermination of service, the parties viz. the Government of India, and SriYashpal Kapur were governed by the Central Civil Services (TemporaryService) Rules, 1949, which were statutory rules. It cannot, therefore, beaccepted on the basis of the meaning assigned to the aforesaid expressionsin Corpus Juris Secundum that the resignation could be tendered by Sri,Yashpal Kapur orally or could be accepted orally.

Learned counsel then urged that in any case a resignation, in orderto be effective, does not call for a formal order of acceptance and that itbecomes effective as soon as it is tenderd. In support of this contention,[learned counsel referred me to Articles 56, 67, 90(6), 101 (3) (b), 124(2)Ci. (a) of the proviso, 156, 190(3), 217(l)(a) and 316 cl. (a) of the proviso.I have looked into all these Articles. Option has been given to the personsmentioned in these Articles, to resign from their seat or office by writingunder their hand addressed to the relevant authority. Thus, by letter oflaw, the matter of resignation in regard to the persons specified in the afore-said Articles of the Constitution has been made an unilateral act. TheseArticles could have no application to Sri Yashpal Kapur, who was governedby separate set of rules, already mentioned above.

1 Learned counsel for the respondent no. 1 then referred me to a few-English cases in support of his contention that resignation, in order tobe effective, begs no formal order for its acceptance. The cases are :

(a) In the matter of the Gloucester, Abery:,twith and South WalesRailway Company and of the Joint Stock Companies Winding-upActs Maitlands case, (English Reports 43 Chancery 708);

(b) Lafchford Premier Cinema, Limited versus Ennion, (ChanceryDivision, Volume 2, 1931);

(t) Morris versus Baron and Company (1918 A. C. 1);(d) Attorney-General for New South Wales versus Pc"petual Trustee

Co. Ltd. and others, [1955 (1) All England Law Reports 846]; and(e) Glossop versus Glossop, (1907) Vol. 2, (Chancery Division).

Learned counsel also referred to the Queens Bench decision in thecase :

In Land Revenue Commissioners versus Hambrook, [1956 (1) All Eng-land Law Reports 8071 as also to the decision of the Court of Appeal in"the same case* reported in 1956 (3) All England Law Reports 338.

All these cases are clearly distinguishable.


Maitland's case relates to the resignation by the Director of a com-pany. It does not relate to the resignation by a public servant. It doesnot appear from the report of the case that the Articles of Association ofthe Company prescribed any mode for tendering a resignation or accentingit. In the case Latchford Premier Cinema Ltd. versus Ennion, again thematter did not relate to the resignation of a public servant but resignationby director of a company. The resignation having been tendered and ac-cepted at the annual general meeting, it was said that it was a case ofmutual agreement. Morris versus Baron and Company case relates to acontact of sale of goods and not to any resignation whatsoever. In thecase Glossiop versus Glossop again the matter in issue was the resignationof a director of a limited liability company. On the basis of the Articlesof Association of the Company it was held that the resignation becameeffective as soon as it was tendered. The remaining three cases only dealwith the relations between the Crown and its servants.

It cannot, therefore, be accepted on the basis of anything said in theaforesaid cases that the resignation tendered by Sri Yashpal Kapur, whowas governed by statutory rules, became effective immediately after it wastendered.

Learned counsel for the respondent no. 1 then referred me to Rodgerson Election, 20th Edition, Volume 2, page 21, mentioning the cases ofAbrobrothock and Lanarkshire in order to support his argument. Thefirst case is of the year 1748 and the other of the year 1774 and they relateto Scotland. It will thus appear that these cases are two centuries old.We do not know what were the rules governing the matter of resignationin Scotland during that time. That apart, both these cases have beenJconsidered and distinguished in the case Sudarsana Rcto versus ChristianPillai and others, (A.I.R. 1924 Madras 306) and again in the case RamMurti versus Sumba Sadar and others, (2 E. L. R. 331 at p. 337). Ncreliance can consequently be placed on the aforesaid two cases mentionedin the book 'Rodgers on Election'.

Coming to the Indian decisions, learreH < o ir> 1 i •>no. 1 first referred me to the case P. R V ' ' V yIndustries Limited, (A. I. R. 1960 Madias, 4°2) This cto the director of a company. It does rot &me"i thin the Articles of Association of the ron ~ •>Therefore, relying on the English cases i* p ' n

had resigned, will be deemed to have res^u En ntion. This case can have no application to ih_ c J u t b^.oi. ^.u.

Learned counsel next referred, me to the case A. H. Ra!

M. N. Kaul and others, (40 Election Law Reports 130).orderly peon of Public Health Engineering Department tendered resignationon 3rd August, 1066. It kept moving between a cour?!e of offices and wasaccepted on 27th of February, 1967 with effect from 3rd August, 1966. Theorderly peon had filed his nomination paper sometime before 23rd January,1967. The scrutiny of the nomination papers took place on 23rd January,1967. The question arose whether the petitioner, namely the orderly peonheld any office of profit on the date of scrutiny of the nomination papersand was disqualified to be chosen. It was held that since the resignationhad been accepted with effect from a date prior to the date cf scrutiny itcould not be held that the petitioner held any office of profit on that date.There are two things worthy of notice about this case. In the first instance,we do not know what were the rules governing the service conditions of

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orderly peons in Jammu and Kashmir (to which place this case relates).Further, there is no discussion in the case on the point as to what was thestatus of the petitioner between the date on which the resignation wastendered and the date on which the order accepting the resignation waspassed. In the present case {Raj Narain versus Srimati Indira NehruGandhi)., also similar situation had arisen earlier when the case went upbefore the Supreme Court and the Supreme Court observed (Raj Narainversus Srimati Indira Nehru Gandhi), (A.I.R. 1972 S.C. 1302 at p. 1308) :

"Yashpal Kapur, appears to have tendered his resignation to the officehe was holding on January 13, 1971. The certified copy of thenotification produced shows that the President accepted his resigna-tion on the 25th of January, 1971, and the same was Gazettedon February 6, 1971. The order of the President shows that heaccepted Yashpal Kapur's resignation with effect from January 14,1971. The learned trial Judge, without examining the true effectof the President's order has abruptly come to the conclusion thatYashpal Kapur's resignation became effective as from January 14,1971. This conclusion, in our opinion, requires re-examination."

As already stated, there is no detailed examination of that point inthe case A. H. Rangrez versus M. N. Kaul and others. It is, therefore,difficult for me to hold on the basis of the aforesaid decision that theresignation of Yashpal Kapur took effect on 14th of January, 1971, merelybecause the order dated 25th of January, 1971, by which the resignationwas accepted, has been made effective from that date.

Learned counsel then referred me to the case V. P. Gindroniya versusState of Madhya Pradesh and another, (A.I.R. 1970 Supreme Court 1494).In this case the appellant gave a notice to the Government on June 6, 1964terminating his service. The Government, however, issued him a showcause notice for departmental inquiry. A question arose whether the ap-pellant continued to remain in service after June 6, 1964. The rules gov-erning the service of the appellant in that case were akin to the CentralCivil Services (Temporary Service) Rules, Rule 12 of those Rules corres-ponded rule 5 of the Central Civil Services (Temporary Service) Rules. Aftertaking those rules into consideration, the Court observed :

"There is hardly any room for dispute that the notice contemplatedby the main clause (a) of rale 12 can be given either by the Gov-ernment or its temporary servant. The rule in question sp;ci-fically says so. It is not necessary for us in the present case todecide whether the two provisos to that rule or clause (b) thereofapply to a notice given by a Government servant. The appellanthas assumed that those provisions ".'so apply to a notice givenunder that rule. We shall for the purposes of this case proceedon the basis of that assumption and see whether the appellant hassatisfied that part of the rule also."

Thereafter, accepting that the appellant had satisfied that part of the rule,the Court held that the appellant was not in service after he had tenderedhis resignation on June 6, 1964.

From the above it will appear that the case V. P. Gindroniya v. Stateof Madhya Pradesh and another (supra) is distinguishable from the caseRaj Kumar v. Union of India (supra), inasmuch as in the former case theCourt proceeded on the assumption that under the rules ihe Government


servant had a right to terminate his services forthwith by submitting hisresignation and by tendering one month's pay in lieu of the period ofnotice. On the language contained in rule 5 of the Central Civil Services(Temporary Service) Rules, 1949, it does not appear that a Governmentservant also has the right to terminate his services forthwith by a noticein writing, also tendering therewith one month's pay and the allowances.That apart, it is not the respondent no. l's plea in this case that, while,tendering his resignation, Sri Yashpal Kapur also tendered or offered to;tender one month's pay or emoluments. This case is also therefore of nohelp to the respondent.

Reference has also been made by learned counsel for respondent .no. 1to an unreported decision of the High Court of Punjab and Haryana. datedApril 29, 1975 in Civil Writ No. 2083 of 1975 : Smt. Sal want Kaur v.State of Punjab and \others. I have carefully gone through this decisionand I find that instead of supporting the contention raised by learned coun-sel for the respondent, it contradicts it. In this case the petitioner was ateacher in the Education Department of the State of Punjab and was ondeputation in the Union territory of Chandigarh with effect from Novem-ber 1, 1966. On 22nd April, 1975, the petitioner submitted her resignationalongwith one month's salary as she wanted to contest election to theLegislative Assembly of the State. The last date for filing nominationpaper was April 30, 1975. Since the acceptance of the petitioner's resigna-tion was being delayed she filed a writ petition asking for a writ of manda-mus directing the respondents to accept the resignation and further todeclare that the petitioner was no longer in the service of the State ofPunjab or the Union territory with effect from the date of her resignation.It was observed :

"Right to enter into a contract implies a right to get out of it. Thepetitioner while accepting service in the State of Punjab had obvi-ously entered into a contract of service. Such a contract can beterminated by making an offer to the appointing authority whichis to be accepted by it within a reasonable time. What is a rea-sonable time for the acceptance of an offer of this type dependsupon the circumstances of each case. In a situation like this whena public servant tenders resignation, in order to contest an elec-tion, the resignation tendered by him should be accepted as earlyas possible and under all circumstances prior to the date on whichthe nomination papers can be filed for the last time."

With the above observation the Court directed the respondents Ho acceptthe resignation of the petitioner from the post of teacher held by her bytoday'.

From the above it will appear that the Court considered the acceptanceof the resignation to be essential for the termination of the service of thepetitioner. Otherwise the Court could very well declare that, since theresignation had been tendered on 22nd April, 1975 alongwith one month'ssalary, it became effective that very day and the petitioner ceased to be inthe employ of the Government from that date. Needless to say that adeclaration to that effect had actually been asked for by the petitioner inthe writ petition and yet it was not granted. Instead the Court directed therespondents to accept the resignation. Therefore, as already stated, thisargument more supports the stand taken by the petitioner than the conten-tion raised on behalf of the respondents.


Learned counsel for the respondent lastly urged that, according to theevidence on record, Sri Yashpal Kapur had ceased to work with effect fromthe afternoon of 13th of January, 1971 and had also submitted a chargereport on the same date, though it was dated as 14th January, 1971. Onthis basis learned counsel urged that Sri Yashpal Kapur was relieved of hiswork and consequently it should be held that his resignation becameeffective from 14th of January, 1971.

Now so far as the cessation of the work is concerned, I do not thinkthat by itself it can bring about termination of employment, for, such cessa-tion of work and absence from duty can always be regularised later byapplying for leave with or without pay. As for the charge report, it maybe mentioned that neither the charge report nor any copy thereof has beengot exhibited in the case. The respondent no doubt examined Sri K. P.Sood (R. W. 8), Section Officer of the Office of the Accountant General(Central Revenues), New Delhi, to prove that Sri Yashpal Kapur was paidhis salary only for the period ending on 13th of January, 1971. Sri Sood,however, conceded in cross-examination that the salary for the periodending on 13th January, 1971 was passed for payment as late as28th August, 1972. The evidence of Sri K. P. Sood cannot, therefore., beproof of the fact that a charge report had actually been submitted bySri Yashpal Kapur on 13th of January, 1971. But assuming that a chargereport had been submitted by Sri Yashpal Kapur when he submitted hisresignation on 13th January. 1971, I do not think mere submission of acharge report alongwith the letter of resignation, in anticipation of theresignation being accepted by the appointing authority, can bring about thetermination of the service, regardless of the fact whether the resignation isaccepted or not. This argument also therefore fails to convince me.

No other argument having been raised, my finding on Issue no. 3 ofthe additional issues is that Sri Yashpal Kapur continued to be in the serviceof the Government of India till 25th of January, 1971.

Issue no. 1 {first set)and

Issue no. 1 (of the additional issues)

Both these issues are repetition of each other word for word and aretherefore being taken up at one place. The question for considerationunder this issue is :

Whether respondent no. 1 obtained and procured the assistance ofSri Yashpal Kapur in furtherance of the prospects of her electionwhile he was still a Gazetted Officer in the service of the Govern-ment of India.

Learned counsel for both the parties argued the matter by splitting theentire period from 29th of December, 1971 onwards into three sub-periods,viz.—•

(1) the period ending on 13th January, 1971;(2) the period from 14th to 25th January, 1971, and(3) the period from 26th January to 6th February, 1971.

I would consider the evidence and the arguments advanced on eitherside in the same arrangement.


1. Period ending on 7th January, 1971:

The petitioner's case is that the respondent no. 1 had held herself outas a candidate from Rae Bareli Parliamentary Constituency on 29th ofDecember, 1970, when she held the Press Conference at Delhi, and thatSri Yashpal Kapur (R. W. 32) started doing election work for her witheffect from the same date. It is further the petitioner's case that on 7th ofJanuary, 1971, Sri Yashpal Kapur accompanied Sri Gulzari Lai Nanda toRae Bareli where they first held a meeting with public representatives atRae Bareli and then delivered speeches in the Shaheed Mela held inMunshiganj, seeking support for the candidature of respondent no. 1.

The respondent no. 1 denied that she held herself out as a candidate onany date prior to 1st of February, 1971. According to her, it was for the firsttime on 1st of February, 1971 at Rae Bareli that she held herself out as acandidate from that constituency. It has also been denied by the respondentno. 1 that Sri Yashpal Kapur did any electioneering work for her till thatdate.

Now, while recording my finding on Additional Issue no. 2, I havealready discarded the respondent no. l's plea that she held herself out asa candidate for the first time on 1st of February, 1971. I have furtherrecorded a positive finding that the respondent no. 1 held herself out as acandidate with effect from 29th December, 1970. The whole matter hasto be considered in that background.

It shall first be necessary to notice a few circumstances which have amaterial bearing on the point under consideration.

On the own admission of Sri Yashpal Kapur (R. W. 32) he had beenworking in the Prime Minister's Secretariat since 1951. He further conced-ed that during the years 1956 and 1964 he was working at the Prime Minister'sSecretariat at his residence and, since the respondent no. 1 was hostess, sheoccasionally called for his assistance for certain functions which she hadto perform, with the result that the respondent no. 1 had come to 'KUGWabout his work fairly well. He also stated thai when the respondent no. Iwas appointed as Minister for Information and Broadcasting, he wastransferred to the Ministry of Information and Broadcasting at the instanceof the respondent no. 1, arid that when the respondent no. 1 became PrimeMinister he was again transferred back to the prime Minister's Secretariatand was appointed as Private Secretary to her. In 1967, when the respondentno. 1 was to contest election from Rae Bareli Parliamentary Constituency,he resigned his post in the respondent's Secretariat and worked for respon-dent no. 1 in Rae Bareli Constituency. After the 1967 elections were overhe rejoined the respondent's Secretariat, and according to him, he did soon the insistence of the respondent no. 1 herself. The relevant por.ion ofthe statement of Sri Yashpal Kapur in this connection reads as follows :

"I left public life in 1967 and joined the Prime Minister's Secretariatbecause the respondent no. 1 asked me to help her in the dischargeof her duties. It was thus on her request that I rejoined the PrimeMinister's Secretariat as Officer oil Special Duty. 1 did not makeany formal application while joining the Prime Minister'sSecretariat in April 1967. If the respondent no. 1 had not request-ed me I would not have joined the Government service in April1967. / agreed to pin because 1 found that the Prime Ministerwas keen on that point."


It will thus appear that, in view of the fact that Sri Yashpal Kaput hadbeen working either with the father of the respondent no. 1 or with therespondent no. 1 herself since quite a long time, Sri Yashpal Kapur hadobtained complete confidence of the respondent no. 1, so much so that heeven resigned from his post in order to do electioneering work for therespondent, when the latter contested election for the Lok Sabha in 1967.After Sri Yashpal Kapur had done that job for the respondent no, 1, hewas re-appointed in the Prime Minister's Secretariat. If the statementmade by Sri Yashpal Kapur is correct, the respondent no, 1 almost consider-ed his services indispensable and insisted on him to join her Secretariat toassist her in the discharge of her official duties.

In the above background, once it has been accepted that the respondentno. 1 had held herself out as a candidate from Rae Bareli Constituencyfrom 29th December, 1970 the fact that Sri Yashpal Kapur visited RaeBareli on 7th of January, 1071 could well be associated with the electionwork of the respondent no. 1. In this connection it is also worthy of noticethat on 5th of January, 1971 Raja Dinesh Singh, who was then a Ministerin the Government of India, had visited Rae Bareli and, according to thesuggestion made to Ram Kumar Singh (P. W. 42), he held a meeting inthe Central Election Office at Rae Bareli and told the workers that therespondent no. 1 was to contest election from Rae Bareli. According toRam Kumar Singh, Raja Dinesh Singh even asked him to help the respondentno. 1. The suggestion made to Ram Kumar Singh itself shows that thevisit of Raja Dinesh Singh was connected with the election of the respondentno. ]. It would so appear from the following question put to Ram KumarSingh in cross-examination :

"I suggest to you that Raja Dinesh Singh was only investigating thepossibility whether respondent no. 1 should or should not fightelection."

Having thus stated the surrounding circumstances of the case, I nowproceed to consider the evidence adduded by the parties in support of theirrespective contentions.

(Pin the speech delivered byin uic b|jcccu uciivcicu uy on I asujjcu jrvapur un /m Jaiiuaiy, iy /1 m uit

Shaheed Msla at Munshiganj he canvassed support for the respondent no. 1.The petitioner also relied on an issue of the newspaper "Beer Vaishwara"(Exh. 67) for this purpose.(bxh. 67) for this purpose.

Nankau (P. W. 28) is Pradhan of the Gaon Sabha Jhakrasi. He saidthat his village was about half a mile away only from Munshiganj; that heattended the Shaheed Mela at Munshiganj and further that Sri Gulzari LaiNandu, the then R.ailway Minister, Government of India, said in the meet-ing that the respondent no. 1 wanted to contest election from Rae BareliConstituency and that the people should give her their vote in order toenable her to win the election. Nankau further said that Sri Yashpal Kapursaid the same thing at the meeting.

The fact that Sarvsri Gulzari Lai Nanda and Yashpal Kapur attendedthe Shaheed Mela at Munshiganj on 7th of January, 1971 had not beencontroverted on behalf of the respondent no. 1. The contention raised onbehalf of the respondent, however, is twofold :

(1) that the evidence adduced by Nankau, and for that matter by otherwitnesses with regard to the alleged speeches delivered in the


Shaheed Mela at Munshiganj on 7th January, 1971 is not admissiblebecause no such meeting was pleaded by the petitioner; and

(2) that in any case even though Sri Yashpal Kapur, accompanied bySri Gulzari Lai Nanda, attended 'the Shaheed Mela at Munshiganjcm the aforesaid date and also delivered speeches there, they didnot say anything pertaining to the candidature of respondent no. 1in the election but only paid tributes to the martyrs.

Now, so far as the first contention is concerned, it is explicitly allegedin para 5 of the petition that the election work done by Sri Yashpal Kapur,inter alia, included 'making speeches in support of the candidature of res-pondent no. 1 Shrimati Indira Nehru Gandhi on 7th of January, 1971, as wellas on other dates canvassing for votes. It is true that it is not mentionedin the petition that Sri Yashpal Kapur made any speech in the ShaheedMela at Munshiganj. Since, however, it was clearly alleged that a speechwas delivered by Sri Yashpal Kapur canvassing support for respondent no. 1on 7th of January, 1971, the mere fact that the place of the meeting wasnot alleged cannot be said to be a material omission. It is also worthy ofnotice that no objection in writing was filed on behalf of the respondentno. 1 urging that the aforesaid part of the pleadings contained in para 5of the petition were vague and that better particulars should be furnished.An oral objection was raised at the time the statement of Nankau was beingrecorded, namely that it was not alleged in the petition that any meetingwas held at Munshiganj on 7th of January, 1971. I have, however, alreadystated that the fact of a meeting having been held on 7th January, 1971, andspeech having been delivered by Sri Yashpal Kapur in that meeting doesfind place in the petition. If the respondent felt that it was necessary toknow the place of the meeting, an objection could be filed on her behalfin that regard at she proper stage and the petitioner could then be calledupon to furnish the particulars. The respondent no. 1 had every oppor-tunity to cross-examine Nankau and the other witnesses who deposed aboutthe meeting held at Munshiganj on 7th of January, 1971. It was also opento the respondent no. 1 to adduce any amount of evidence in rebuttal. Infact the respondent no. 1 has adduced that evidence. Once the parties havejoined issue on that point and have led evidence, the objection raised bylearned counsel for the respondent no. 1 cannot be countenanced, moreparticularly because learned counsel for the respondent no. 1 has failed toshow that any prejudice has been caused to the respondent no. 1 for thereason of the place of the meeting not having been disclosed in the petition.

Coming to the merits of the evidence of P. W. Nankau, learned counselfor the respondent urged that Nankau could not tell the dates on which hehad visited his relations; that he could not tell the date on which his marriagetook place; that he could not tell the date of birth of his first chiH norcould he tell the date of birth of his youngest child. It was urged mat ifNankau could not remember any of the aforesaid dates, it did not appearprobable that he could remember about the date of the alleged meetingheld at Munshiganj. The argument fails to convince me. It is admittedin both hands that during the non co-operation movement shooting hadtaken place at Munshiganj resulting in loss of life of some people, whowere fighting for the freedom of the country. It is again admitted on bothhands that in the memory of those persons who lost their lives in thatincident a 'Shaheed Mela' is held on 7th of January every year at Munshi-ganj. The Shaheed Mela has thus a special significance for those residingnear about Munshiganj, and since the Mela takes place every year on the

E.L.R] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 129

same date, there was absolutely no improbability in Nankau having remem-bered the date even though he could not recollect the dEFtes of other eventsin his life.

Learned counsel next contended that, on the own admission of Nankau,P. W. Uma Shanker Yadav contested election from Rae Bareli constituencyas a B. K. D. candidate in the election that took place in 1974 and that hewas a worker for Uma Shankar Yadav. On this basis it was stressed thatNankau belongs to a hostile party and it should therefore be inferred thathe came forward to give evidence about the alleged speech delivered bySri Yashpal Kapur on account of his political association with the hostileparty. I am afraid, the mere fact that in the year 1974 Nankau worked fora B. K. D. candidate cannot constitute a sufficient ground for discarding histestimony. So many persons, who do not have any association with f»political party, sometimes come forward to serve a candidate sponsored bythat party, not because of their association with the party put on the groundof their association with the candidate himself in one way or the other.That by itself does not make them unreliable witnesses. In the case ofAmbika Saran Singh v. Mediant Mahadeo Nand Gin (41 Election LawReports 183 at p. 193) the Supreme Court said : —

"We do not in the present case have to decide whether a person actingas a polling agent or a counting agent or a person wishing thesuccess of a particular candidate is necessarily an interested witness.Assuming that he is, his evidence cannot be rejected only for thatreason. At the most the Court in such a case should scrutinisehis testimony closely and demand corroboration before actingupon it."

It could not be shown in the instant case that the evidence of Nankauis otherwise inconsistent or infirm. I have already stated earlier: thatlooking to the setting in which Sri Yashpal Kapur to Rae Bareli on 7thof January, 1971, it is not improbable that, while delivering speech in theShaheed Mela at Munshiganj, he exploited the occasion also to canvasssupport for the respondent no. 1 in the election. The statement made byNankau thus is therefore amply supported by the surrounding circumstances.

Some stress was also laid by learned counsel for the respondent no. 1on the admission made by Nankau in cross-examination that it was for thefirst time in Court that he made a statement about the meeting held on 7thof January, 1971 and that he never told about that meeting to any personprior to is. It was argued that if Nankau did not make a statement abouthis visit to the Shaheed Mela at Munshiganj to any person, it is notunderstandable as to how he could be cited as a witness in the case, andthis impairs the value of his testimony. I am once again unable to agree.In the first instance, while saying that he did not make a statement aboutthe meeting prior to his being examined in the case, he presumably meanta formal statement. But, even if he did not mention about it to any personeven in mutual conversation prior to his being examined in Court, he wasafter all not the only person to have attended the meeting. There shouldhave been quite a big gathering and any person who would have seenNankau in the meeting could furnish information to the petitioner to enablehim to examine Nankau as a witness in the case.

Learned counsel then said that according to the statement made byNankau in cross-examination two other persons,, namely Sarju Prasad andRam Pal of village Jhakrasi attended the meeting and that all three ofthem had gone to the meeting together. Sarju Prasad and Ram Pal were


examined as R. W. 12 and R. W. 13 respectively. It was stressed by learn-ed counsel for the respondent that, according to the submissions on oathmade by Sarju Prasad and Ram Pal P. Ws., they never went to ShaheedMela at Munshiganj and this establishes that the statement made byNankau is wholly false. In view of this • contention raised on behalf ofthe respondent, it will be appropriate to> consider the evidence of SarjuPrasad (R. W. 12) and Ram Pal (R. W. 13) at this very stage.

Sarju Prasad (R. W. 12) and Ram Pal (R. W. 13) are residents ofvillage Jnakrasi and both of them said that they did not go to atlendthe Shaheed Mela in January, 1971. I do not, however, feel impressedwith their evidence. Sarju Prasad was a teacher in a Primary Pathshaladuring the year 1>971. He conceded in cross-examination that Gaya PrasadShukla was the Adhyksha of the Zila Parishad and that his Pathshala wasrun by the Zila Parishad. It may be recalled that Gaya Prasad Shuklawas doing important work in the election. The copies of the tour pro-grammes of the respondent no. 1 used to be issued to him. It was he whoissued a general appeal in support of the candidature of the respondent no.1 (Exh. 24), and it was he who, according to Sri Yashpal Kapur, was Main-taining the accounts pertaining to the election of the respondent no. 1. It isauite likely that once Nankau had conceded in cross-examination thatSarju Prasad had accompanied him to the Shaheed Mela, pressure wasbrought to bear on Sarju Prasad (R. W. 12) by Gaya Prasad Shukla inorder to make him appear as a witness in the case and give evidence tocontradict the testimony of Nankau. It is true that in his re-examinationSarju Prasad admitted that on the date on which he was examined as awitness in the case the school was being run by the Government under thecontrol of the District Basic Education Officer. However, the associationthat Gaya Prasad Shukla had with the Pathshala in his capacity as Adhya-ksha, and consequently with Sarju Prasad, who was a teacher in that Path-shala, could not have been wiped off over night merely because the schoolwas taken over by the Government to be run under its own officers. Mate-rial was also elicited in the cross-examination of Sarju Prasad to show thathe did not exhibit a straight forward conduct while in the witness box. Ihave already said earlier that the Shaheed Mela at Munshiganj carried someimportance in the locality. Sarju Prasad himself admitted that on 7thJanuary, 1971 the Pathshala was closed because of the Shaheed Mela. Itis then not improbable that Sarju Prasad, R. W. 12 would also have gone tothe Shaheed Mela, which was only one and half miles away from his village,particularly when a leader of all India importance, namely Sri Gulzari LaiNanda had come to pay tributes to the Martyrs. Sarju Prasad however,stated that he has not even seen that site in Munshiganj on which theShaheed Mela takes place, and that he has never been to the Shaheed Mela.Now, this is a statement which cannot be accepted for any moment.

Sarju Prasad (R. W. 12) is, therefore, not a reliable witness in myopinion and the evidence of Nankau cannot be discarded on the basis ofhis evidence.

Ram Pal (R. W. 13) also stated in cross-examination that he had notbeen to the Shaheed Mela since he had attained discretion. I have alreadysaid that Shaheed Mela carried some importance in the locality and, con-sequently, it cannot be accepted that he would not have gone to the ShaheedMela during his life time. That alone shows that he was not making atrue statement while in the witness-box. He admitted in cross-examina-tion that Sri R. C. Shukla, Advocate belongs to his village. This R. C.

"E.L.R.1 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 131

Shukla was at one stage doing pairvi on behalf of the respondent in thiscase and a complaint was lodged in the court on behalf of the petitionerthat one of his witnesses was taken away by him to prevent the witnessfrom giving evidence in the case. Notice for contempt was therefore, issu-ed against him, which has since been discharged. The fact that Sri R. C.Shukla was working for the respondent no. 1 during the election, was elici-ted in the cross-examination of Sri Yashpal Kapur (R. W. 32). Sri MohanLai Tripathi (P. W. 59), General Secretary, District Congress Committee(R), Rae Bareli, stated that Sri Ramesh Chand Shukla, was one of thegeneral secretaries of the District Congress Committee (R)' in 1970-71. Now,since Ramesh Chand Shukla, Advocate is a resident of the same villagewhere Ram Pal resided, and since he was an important worker for therespondent no. 1 during the election and was also her pairokar at somestage, the possibility of Ram Pal having been pressurised by Sri RameshChand Shukla cannot be excluded. Together with it there is also the factthat Sri Gaya Prasad Shukla, another important workers of the respondentno. 1, happened to be the Adhyaksha of the Zila Parishad during the periodthe witness was examined in the case. It is a matter of common knowledgethat the Adhyaksha of the Zila Parishad always wields influence in the ruralareas. It will not be out of place to add that when it was put to RamPal in cross-examination as to which party did Sri Ramesh Chand Shuklabelong, he pleaded ignorance about it. It cannot be accepted for anymoment that even though Sri Shukla resided in the village in which thiswitness resided, and even though Sri Shukla was such a prominent workerof the Congress Party, Ram Pal would not have known about it.

All the above reasons make it abundantly clear that Ram Pal (R. W.13) is also not a truthful witness. The evidence of Nankau cannot, there-fore, be discarded on the basis of anything stated by him.

No other criticism having been made against the evidence of Nankau(P. W. 8), I find that he is quite reliable witness and there is no risk in act-ing on his testimony.

R. K. Dixit alias Phakkar (P. W. 31), during January to March, 1971,was Joint Editor of 'Beer Baishwara', a weekly paper printed aijd pub-lished from Rae Bareli. He deposed that he also served that paper as areporter, that he had himself attended the meeting that took place atShaheed Smarak, Munshiganj, on 7th January, 1971, and that Sri GulzariLai Nanda and Sri Yashpal Kapur besides others, delivered speeches in thatmeeting. Referring to the speech said to have been made by Sri YashpalKapur, the witness deposed :

"Sri Yashpal Kapur in his speech said that respondent no. 1 shall con-test election to the Parliament from Rae Bareli constituency and,like the previous occasion, we should again make her successful."

The witness then referred to the news item relating to that meetingpublished in Beer Baishwara dated 9th January, 1971 (p. 1 columns 1 and2) and said that this report was sent by him. The report has been marked(Exh. 67).

I was not even suggested to Sri R. K. Dixit, alias Phakkar (P. W. 31)that he had any affiliation with any political party, or with any candidatehostile to the respondent no. 1. It could also not be shown that he hadany other reason in order to make a false statement affecting Sri YashpalKapur and the respondent no. 1. Learned counsel for the respondent no. ] ,


however, pointed out that in the news item (Exh. 67) it is not explicitlystated as to what had been said by Sri Yashpal Kapur in the speech deli-vered by him in the Shaheed Mela. Learned counsel urged that on thatground the statement of Sri R. K. Dixit in Court should not be accepted.It is a matter of common knowledge that it only the purport of the speechesthat is some times published in the papers. In the first part of exhibit 67it is stated :

"Pradhan Mantri ke chunao prachar abhiyan ka Shri Ganesh dinank5 January ko Kendriya Udyog Mantri dwara Congress Karyalayamen karya kartaon sambodhan se shuru hua jiska vidhivat ud-ghatan 7 January ko Munshiganj Shaheed Ashthal Par KendriyaRail Mantri Shri Gulzari Lai Nanda dwara aek bhaari Jansabliake sambodhan se hua."

In the other part of the issue of 'Beer Baiswara' dated 9th January.1971 (Exh. 67) it is first stated that the Railway Minister Shri Gulzari LaiNanda and Shri Yashpal Kapur, Private Secretary of the respondent no. 1reached Rae Bareli station on 7th January, 1971 at 11.00 a.m. It is furtherstated that in the Shaheed Mela held at Munshiganj, Sri Gulzari Lai Nandadelivered a speech and said that the respondent no. 1 stood for removingpoverty, starvation, and unemployment from the country and that her handsshould be strengthened by making her successful in the election. In thenext paragraph it is said that the leaders of the District Congress Com-mittee, including Dal Bahadur Singh, Devi Charan Pandey, Ram ShankarTripati, Amresh, Advocate, Ramesh Chand Shukla, Advocate and Dr.P. N. Mehrotra, also delivered speeches, throwing light on the policies ofthe respondent no. 1 and doing mud-slinging on the opposition parties. Inthe paragraph following it, there is mention of the fact that Sri YashpalKapur, Sri Madan Mohan Misra, Sri Shiv Shankar Singh and Sri Parma-nand also delivered speeches in that meeting. Since Sri Gulzari Lai Nandawas the leading speaker, his speech was reported at length. Thereafter thenames of other speakers were disclosed. Since the substance of theirspeeches was also the same as that of Sri Gulzari Lai Nanda, it was pre-sumably considered futile to repeat it over again. Reading the news itemas a whole, it is clear that all those persons who delivered speeches at theShaheed Mela solicited support for the respondent EO. 1 as a candidateseeking election from Rae Bareli constituency. At one place in the newsitem, while referring to the substance of the speech delivered by Sri GulzariLai Nanda, it is mentioned.

"Vashtava men chunao prachar sabha thi."

The contention raised by learned counsel for the respondent that, whilesending report about the speeches delivered at the Shaheed Mela (Munshi-ganj) on 7th January, 1971, Sri R. K. Dixit alias Phakkar did not reportthe substance of the speech of Sri Yashpal Kapur and, consequently, thestatement made by him in Court about the contents of the speech deliver-ed by Sri Yashpal Kapur at the said Shaheed Mela should not be held tobe true, is not justified and cannot be acceipted.

In my opinion, therefore, Sri R. K. Dixit alias Phakkar (P. W. 31) isquite an independent and reliable witness and there is no risk in acting onhis testimony.

Vidya Shankar Yadav (P. W. 43) is a practising Advocate. He depos-ed that he had also gone to the Shaheed Mela in order to attend the meet-ing that took place there. He further on stafed that Sarvsri Gulzari Lai

E.L.R.] SHRl RAJ NARAIN V. SMT. INDIRA GANDHI 133

Nanda and Yashpal Kapur also delivered speeches in that meeting besidesother persons and that Sri Yashpal Kapur, after paying tributes to themartyrs, said in his speech :

"Respondent no. 1 had successfully contested election earlier from RaoBareli constituency and that she would contest election from thesame constituency and we should make her successful."

In cross-examination he said that in 1921 firing had taken place atMunshiganj in which a number of (persons had lost their lives and thata meeting is held every year there in order to pay tributes to the martyrs.According to him, members of all political parties had attended that meet-ing and it was for that reason that he had gone to attend it.

It was elicited in the cross-examination of Sarju Prasad (R. W. 12)that a distance of two miles intervened between Munshiganj and RaeBareli. Looking to the very small distance that intervenes between RaeBiu'cii and Munshiganj, and further looking to the fact that a meeting wasto take place at Munshiganj for paying tributes to the martyrs and a leaderof all-India importance viz. Sri Gulzari Lai Nanda had come for the pur-pose, there is absolutely no improbability in Sri Vidya Shankar Yadav,Advocate having gone to Munshiganj to attend the meeting.

Learned counsel for the respondent no. 1 pointed out that, on his ownadmission, Sri Vidya Shankar Yadav, was polling agent for the petitionerand also looked after his election work. It was also pointed out thai,according to the admissions elicited in cross-examination, he belonged toBhartiya Kranti Dal and, during the year 1974, he was a proposer of UmaShankar Yadav. who contested election as a candidate of the SanyuktSocialist Party. Learned counsel stressed that partly for the reason thatthis witness had worked for the petitioner in the election and partly forthe reason that he belongs to the opposition party, it would be fraught withrisk to rely on his testimony. True, Vidya Shankar Yadav frankly ad-mitted that he had worked for the respondent in the election and that hewas also a member of opposition party, namely Bhartiya Kranti Dal. Thefact, however, remains that he is a practising Advocate and further thathis evidence is supported by the evidence of two other witnesses, whom Ihave already held to be reliable witnesses.

Learned counsel for the respondent no. 1 also urged that Sri VidyaShankar Yadav, was an educated person, being an Advocate, and furtherhe also belonged to an opposition political party. It was stressed that ifit were a fact that any electioneering was done at the meeting held at ShaheedMela (Munshiganj), complaints about it would have been sent by Sri VidyaShankar Yadav to some authorities. Learned counsel pointed out that, onthe own admission of Sri Vidya Shankar Yadav, he did not send any com-plaint about it anywhere and, consequently, the statement made by Sri VidyaShankar Yadav that any electioneering was done by any person in the meet-ing at Munshiganj should be discarded as untrue. I am once again unableto agree. Sri Vidya Shankar Yadav, on being questioned on that p./>int,clearly stated that he had raised a protest at the meeting about its beingconverted info an election meeting. He, however, said th;:t since there were3 or 4 persons only who raised the protest, they we.: not heeded. Furtheron he said that he did not send any complaint about it because the meet-ing was organised by the people residing at Rae Bareli and most of thembelonged.to Congress (R). There is thus some explanation as to why nocomplaint was sent by Sri Vidya Shankar Yadav. Together with it thereis also the fact that no notification in regard to the election had till then10—345 Elec. Com./ND/81


been issued by the Election Commission of India. This could have dissuad-ed Sri Vidya Shankar Yadav from sending any complaint to the ElectionCommission, and there couid be hardly any logic in sending complaintsabout is to any other authority. As for Sri Vidya Shankar Yadav P. W.not havb'g issued a ay statement to the press, i; could be due to the iactthat the matter had already otherwise ob*ained publicity in Rae BareH.

Since Sri Vidya Shankar Yadav is a respectable witness and since hisevidence L- cwroborated -"j Uie evidence of two independent persons, I seeno risk in relying on his testimony as well.

Lastly, there is ihe i^sae of 'Beer Baiswara' da ed 9th January, 1971.The paper was filed in Court by Sri Ram Dev Trivedi (P. W. 23), Editorthereof. He stated that the news, item (Exh. 67) in that paper was bat-edon the information received from Sri R. K. Dixit, who was then the CityReporter for the paper. Sri R. K. Dixit (P. W. 31), as also mentionedearlier, having entered the witness-box, has proved that news item. Hehas also given direct evidence about the speech delivered by Sri YashpalKapur, at that meeting. The news item (Exh. 67"! published in 'Beer Bais-wara' dated 9th January, 1967, therefore stands proved. A reading of thatnewis item as a whole shows that in the election speech delivered by SriYashpal Kapur, canvassing was done for respondent no. 1. It cannot beaccepted that this news item was published on 9th January, 1971 by wayof any peshbandi. No foundation could be laid by learned counsel forthe respondent no. 1 in order to contend that this issue of 'Beer Baiswara'was got printed some time after the election for the purpose of this peti-tion. I accordingly hold that the news item (Exh. 67) contained in the issueof 'Beer Baiswara' dated 9th January, 1971 can also be utilised to corro-borate the evidence of Nankau (P.W. 28), R. K. Dixit, alias Phakkar (P. W.31) and Vidya Shankar Yadav (P. W. 33). I must, however, make it clearthat even if this issue of 'Beer Baiswara' were not there, I would not havefelt any hesitation in relying on the evidence of the aforesaid witnesses.

The aforementioned evidence adduced by the petitioner thus does showthat Sri Yashpal Kapur, delivered a speech in the Shaheed Mela atMunshiganj on 7th January, 1971 and in that speech he did canvassing forthe candidature of the respondent no. 1.

The second item of evidence relied upon by the petitioner for the periodending on 13th January, 1971 is the entry at serial no. 1 of the return ofelection expenses (Exh. 5) filed by the respondent. According to this entry,a sum of Rs. 657.90 was paid on 11th January, 1971 to the District ElectionOfficer, Rae Bareli, on account of payment of cost of voters' list. Learnedcounsel pointed out that the first column in the return is meant to carrythe date of expenditure and sixth column thereof is meant to carry thename of the person to whom payment is made. Learned counsel urgedthat since the entry in the first column shows that the amount was paid on11th November, 1971, and since the entry in the sixth column indicatesthat it was paid to the District Election Officer, it should be held that on11th January, 1971 Sri Yashpal Kapur, purchased voters' list for the res-pondent and thus rendered assistance to her.

According to Sri Yashpal Katmr, after he had started serving as elec-tion asent, he wanted to obtain a list of voters and, since he came to knowthat the District Congress Committee had already obtained the voters' list,lie obtained the same from the D.C.C. and paid the sum of Rs. 657 90 tothem.


I am not fully convinced with the statement of Sri Yashpal Kapur, for,if it were the whole truth, the expenditure should have been entered in thereturn (Exh. 5) in the date in which the money was actually paid by SriKapur, and in column six of the return there should have been the name ofthe District Congress Committee instead of the name of the District ElectionOfficer."

All the same, since there is no positive evidence of the fact that SriYashpal Kapur was present at Rae Bareli on 11th of January, 1971, it willnot be very safe to conclude on the basis of the aforesaid entry that SriYashpal Kapur himself purchased the voters' list for respondent no. 1 on11th January, 1971. Sri Gaya Prasad Shukla was a prominent worker forthe respondent no. 1. According to Sri Yashpal Kapur, he was in chargeof maintaining accounts. It is quite likely that, under some instructions,he purchased the voters' list for the respondent no. 1 and hence the entry.

I would, therefore, place no reliance on entry 1 of the return of electionexpenses (Exh. 5) while considering the services rendered by Sri YashpalKapur to the respondent no. 1 during the period ending on 13th January,1971.

The respondent no. 1 examined four witnesses in rebuttal. Out ofthem, I have considered the evidence of Sarju Prasad (R. W. 12) and RamPal (R. W. 13) while assessing the evidence of Nankau (P.W. 28) and havefound both of them to be unworthy of reliance. The third witness exa-mined by the respondent is Thakur Ambika Singh (R. W. 24). He de-posed that he too attended the Shaheed Mela that took place in Munshiganjon 7th January, 1971, and that, while Sarvsri Gulzari Lai Nanda, YashpalKapur and some local leaders paid tributes to the martyrs in that ShaheedMela, it was not said by any of them that the respondent no. 1 shall contestelection to the Lok Sabha from Rae Bareli constituency. It was, however,elicited in his cross-examination that he was a member of the CongressParty since 14 or 15 years and that in the election that took place in 1971he had worked for the respondent no. 1 as a member of that party. It wasalso elicited in his cross-examination that about six years ago he was prose-cuted on a charge of dacoity. The trial court held him guilty, but he wasacquitted in appeal. He is thus in the first instance an interested witnessand, further, his antecedents were also not wholly above board. Materialwas also elicited in his cross-examination to show that he tried to suppressfact?. He said that it was wrong that Gaya Prasad Shukla was in chargeof fhe election office in 1971. It has, however, already been mention earlierthat copies of the tour programmes were forwarded among others to SriGaya Prasad Shukla, and that his address is mentioned therein as 'KendriyaCongress Karyalaya, Rae Bareli' (Exh. 43). Again on 1st February, 1971he had issued a general appeal in the constituency in support of the candi-dature of the respondent no. 1, copy whereof is Exhibit 24 on record. SriYashpal Kapur conceded in cross-examination that Sri Gaya Prasad Shukla,was in charge of maintaining election accounts on behalf of the respondentno. 1. The statement made by Thakur Ambika Singh about Sri Gaya PrasadShukla is thus not the whole truth.

For all the aforesaid reasons implicit reliance cannot be placed on testi-jnony of Thakur Ambika Singh.

Lastly, there is the evidence of Sri Yashpal Kapur (R. W. 32). He ad-mitted having attended the meeting in Sfiaheed Mela at Munshiganj on 7thJanuary, 1971 and also having delivered a speech there. He however, said

136 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL. LVlI

that he only paid tributes to the martyrs in the brief speech given by him,and that he did not say anything about the candidature of the respondentno. 1 or about the election in that meeting. It will be appropriate here tomake an overall estimate of the evidence of Sri Yashpal Kapur in order tofind out as to what extent reliance, if any, can be placed on his testimony.

While recording my finding on issue no, 1 of the additional issues, Ihave already held that the statement made by Sri Yashpal Kapur to theeffect that the respondent no. 1 had held herself out as candidate for thefirst time on 1st of February, 1971 after having a talk with Sri KamlapatiTripathi and the members of the District Congress Committee, Rae Bareliwas untrue and had been made with a view to fortify the plea that; had beenset up by the respondent no. 1.

Sri Yashpal Kapur also stated that in 1967 he resigned from his postbecause he wanted to do public service. It is however, strange that his zealfor public service was very short lived, for, very shortly af'er the electionwas over he again joined service in the Secretariat of the respondent no. 1.In that context it should be held that the statement made by Sri YashpalKapur that he resigned in 1967 with a view todo public service was untrue,and the fact that he did so only with a view to work for the respondent no.1 in the election. Again he stated that having attended the Shaheed Melaat Munshiganj on 7th January, 1971, he returned to Delhi next day, andthat on 9th or 10th January, 1971 he again expressed a desire to the res-pondent no. 1 to resign so that he could enter public life. Now, it is notunderstandable as to why, having peacefully worked as Officer on SpecialDuty in the respondent no. l's Secretariat till 7th of January. 1971, he wasagain seized of a desire to do public service. The desire was so intensethat within a couple of days he took decision, despite the warning said tohave been given by the respondent no. 1, and actually tendered this resigna-tion on 13th of January, 1971. The fact that he was seized of a desire onceagain on the eve of parliamentary elections after the respondent no. 1 hadexpressed her intention to contest election from Rae Bareli, only shows thatit was not the desire to do public service, but the desire or behest to do elec-tion work for the respondent no. 1 that induced him to resign.

Testing the statement of Sri Yashpal Kapur regarding the motive ofhis resignation a little further, We find that having submitted his resignationon 13th of January, 1971 he met the same evening Sri Kamlapati Tripathi,the then President of the U. P. C. C. who was camping at Delhi. SriYashpal Kapur said that he told Sri Kamlapati Tripathi that he was a freeman and could do any work assigned to him, whereupon Sri KamlapatiTripathi asked him to go to the districts east of Lucknow. Now, it isworthy of notice that general election to the Lok Sabha had taken placein the country in 1971. Sri Yashpal Kapur claims to have resigned onthe eve of those elections. It may be assumed that he did so at that timebecause there was opportunity to do greater and more hectic service duringthat period. It is, however, strange that once again he was asked to go tothe direction of Rae Bareli. Proceeding further, Sri Yashpal Kapur saidthat having .reached Lucknow in the morning of 14th January, 1971, heobtained a car from the U. P. C C. and went to Rae Bareli the same day.Why to Rae Bareli? According to him, Sri Kamlapati Tripathi had askedhim to go to the districts east of Lucknow. Rae Bareli was not the onlydistrict east of Lucknow. Why should he then have gone to Rae Bareliunless the reason underlying his resignation was to do election work forthe respondent no. 1 in the constituency.

E L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 137

Sri Yashpal Kapur said that having stayed at Rae Bareli till the noonof 17th January, 1971 (he left for Sultanpur and Bara Banki. He, however,said in cross-examination that he did not stay at Bara Banki for more thanone day because Bara Banki was very near to Lucknow and staying atLucknow was more comfortable. About Sultanpur, he said that he stayedonly for one day, but he did not remember the place of his stay there. Askedabout the work done by him at Sultanpur and Bara Banki, he said that hejust talked to the local people there about the organisational work. Thisdoes not appear to be convincing. As I will show a little later, there isevidence on record to indicate that he stayed on at Rae Bareli till 19th ofJanuary, 1971. It appears that he made the aforesaid statement to avoidadmitting his presence in the meeting that took place at the Clock Tower,Rae Bareli, on 17th January, 1971, and in the meetings and functions ofProfessor Sher Singh that took place on 18th and 19th January, 1971.

It was put to Sri Yashpal Kapur that in 1967 he resigned on the eveof election and worked in the constituency of the respondent no. 1; thatin the year 1971 he again worked in the constituency of the respondent no. 1,and whether there was any particular reason behind this coincidence. Hereplied that he did so because everyone wants to get into the work whichmay push him into the Parliament for the Legislature of some State. Heconceded that he had that ambition in 1967 as well as in 1971. In factthe respondent no. 1 (R. W. 37) also said during her cross-examinationthat in 1967 Sri Yashpal Kapur was looking for some opportunities whichwere not available at that time. That being so, it is obvious that Sri YashpalKapur did not resign in 1967, nor in 1971, for the sake of any publicservice but only to work for the respondent no. 1 in her constituency andthereby obtain her help in the fulfilment of his ambition.

According to Sri Yashpal Kapur, his ambition was fulfilled in 1972when he was elected to Rajya Sabha from the Uttar Pradesh. The state-ment made by Sri Yashpal Kapur in that connection also deserves somenotice. He conceded that a person who is not a resident of a particularState cannot be elected a member of Rajya Sabha from that State. In theelectoral roll of the year 1970 (Exh. 17) he is entered as a resident of HouseNo. 968, Kutchery Road, Rae Bareli. He, however, conceded that neitherin 1963-69 nor in 1970-71 he ever resided in Rae Bareli. It was obviouslyso because he was then employed in the Prime Minister's Secretariat atDelhi. It was, therefore put to him whether his residence as shown in theelectoral roll (Exh. 17) was incorrectly mentioned as house no. 968, KutcheryRoad, Rae Bareli. He first said : "I would not call it wrong. I rememberwhen the revision of the electoral roll was taking place I was at Rae Bareliand I was told that my name has been entered in the electoral roll of RaeBareli." The question that was next put to the witness and the answergiven by him or as follows :

"Q. The answer given by you does not answer the question that wasprecisely put to you. You have still to answer as to how thedescription of your residence in Exh. 17 is correct when youconceded that during the year 1970 you were not residing in anytown or district in U. P.?

A. I am not able to answer the question". It will thus appear thatSri Yashpal Kapur has not been able to give any explanation whatsoeveras to how he was recorded as an elector in the State of Uttar Pradesh duringthe vear 1970.

138 SHRI RAJ NARAIN V. SMT. INDIRA GANDHJ [VOL. LVII

It was further elicited in his cross-examination that on 14th November,1970 a branch of the Baroda Bank was opened at Rae Bareliand Sri Jagannath Paharia, the then Deputy Minister, Finance,had inaugurated it. He said that he had then opened a symbolic accountof Rs. 101 in the above branch of the Baroda Bank. He was confrontedwith the letter (Exh. 54) sent by the Agent, Bank of Baroda, Rae Barelibranch to the Deputy Registrar, High Court, which, inter alia, states thatthe Bank had 'a Savings Bank Account No. 26 in the name of Sri YashpalKapur, address: Kutchery Road, Rae Bareli', Sri Yashpal Kapur startedthat while opening the account he did not furnish any address for beingentered in the record of the Bank of Baroda. He conceded that he wasaware of the fact that while opening an account in any Bank a person hasto furnish his address. He, however, said that he did not furnish anyaddress because he had opened a symbolic account only. Sri AshokKumar Dhupar (P. W. 11) an officer of the Bank of Baroda. was examinedby the petitioner and he deposed :

"Sri Yashpal Kapur, who opened the account, gave his name asYashpal Kapur and address as Kutchery Road, Rae Bareli."

He further on said that any person opening an account in the Bank of.Baroda has to present himself personally in the Bank for opening theaccount and his specimen signatures are obtained and kept. In view ofthe letter (Exh. 54), the aforesaid admission made by Sri Yashpal Kapurand the statement of Sri Ashok Kumar Dhupar (P. W. 11), it is difficultto accept that the address of Sri Yashpal Kapur was recorded in the Bankat Kutchery Road, Rae Bareli, without his telling so. It was put to himthat since he conceded that during the year 1970 he resided at Delhi andwent to Rae Bareli occasionally, and since he further conceded that hedid not furnish any address while opening the account with the Bank ofBaroda, could be tell at whose instance his address was recorded in theBank papers as is contained in the letter (Exh. 54). The witness expressedhis inability to say as to at whose instance his address came to be recordedlike that in the records of the Baroda Bank.

Learned counsel for the petitioner vehemently argued that Sri YashpalKapur manipulated to get his name entered in the electoral roll (Exh. 17)as resident of House No. 968, Kutchery Road, Rae Bareli, and that heagain made a wrong representation in that connection while opening hisaccount in the Bank of Baroda in the year 1970, in order that he could beelected to the Parliament as an elector from this State. Since Sri YashpalKapur failed to offer any explanation whatsoever as to under what circum-stances his name came to be entered in the electoral roll (Exh. 17) andunder what circumstances his address was entered in the Bank papers, asKutchery Road, Rae Bareli, the contention raised on behalf of the petitionercannot be rejected as devoid of substance. According to Learned counselfor the petitioner, this exposes Sri Yashpal Kapur to the charge that hecould make any statement in order to achieve his purpose. The criticismcannot be said to be uncalled for, in view of the own statement ofSri Yashpal Kapur.

Learned counsel for the respondent no. 1 objected that anything per-taining to the entries in the electoral roll could not be questioned as thereare exhaustive provisions pertaining to that matter in the Representationof the People Act, 1950 and the rules framed thereunder. I agree thatthe finality of an electoral roll cannot be questioned in an election petitionassailing the election of a particular elector. It does not, however, mean

E-L.R.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 139

that the statement of a witness on the point as to how he came to be re-corded as an elector in any State cannot be considered even for assessinglh.:- worth of his testimony in any other case too. The objection raised byLearned counsel for the respondent no. 1 cannot, therefore, be accepted.

The statement made by Sri Yashpal Kapur, on the. point of expendi-ture incurred by him on behalf of the respondent no. 1 also appears to bedubious. He said that he did not incur any expenditure on behalf of therespondent before 1st of February, 1971. Exh. 22/9 is however, the copyof the receipt obtained by lr'm for the remuneration paid to Siraj Ahmaddriver. This receipt is annexed to the return of election expenses. Ac-cording to Shri Yashpal Kapur, he obtained the jeep after 1st of February,1971 and the driver had been engaged by him. (This would mean that the*driver had been engaged on or after 1st February, 1971). A perusal ofthe aforesaid receipt, however, shows that the driver was paid salary forthe period from 15th January, 1971 to 10th of March, 1971. It therefore,follows that Sri Yashpal Kapur, had started incurring election expenseswith effect from 15th January, 1971. Confronted with the receipt (Exh.22 9), Sri Yashpal Kapur, tried to modify his statement and said that thejeep was already at Rae Bareli when it was given to him and he was toldthat Siraj Ahmad was the driver on the jeep. Now, this statement is in-consistent with his previous statement that the driver had been engaged byhim. Further, even that statement made by him fails to explain as to whyremuneration for the period prior to 1st of February, 1971 was paid byhim, if he had obtained the jeep for election work on or after 1st of Feb-ruary, 1971. On being specifically questioned with regard to it, Sri YashpalKapur, said that he paid the salary to the driver for the period commencingfrom 15th January, 1971, because Sri Gaya Prasad Shukla told him thatthe driver was on the jeep with effect from that date. As already stated,this statement aeain contradicts his previous statement that the driver hadbeen engaged by him. However, he was questioned that, if he was awarethat in the return of election expenses only the amounts spent in connec-tirn with the election had to be shown, why that part of the remunerationwhich related to the period prior to 1st of February, 1971 and was notemotion expenditure, was included by him in the receipt (Exh. 22/9) andin the return of election expenses. To that the witness replied :

"I may have erred but I erred on the right side. There was a big mar-gin available. I, therefore, saw no harm in including the wholeamount specified in the receipt (Ex. 22/9) in the election return."

The reply is not at all convincing.

Again, according to the return of election expenses (Exh. 5), he in-curred an expenditure of Rs. 657.90 en 11th January, 1971 on account ofa-;-, of voters' list. The next six entries in the return relate to the expen-diture incurred on 28th January, 1971. The seventh and eighth entriesrelate to the expenditure incurred on 29th January, 1971 and the entryfollowing it relates to the expenditure incurred on 30th January, 1971. Ifit were true that Sri Yashpal Kapur, did not incur any expenditure before1st February, 1971. as stated by him, how do all these entries exist in thereturn (Exh. 5). That apart, vouchers nos. 54, 53, 52, 51 and 50. accom-panying the return of election expenses (Ex. 5) show that Nanhey Dhobi,Srimati Rewa Ram Pyari, Srimatj Dayya Dulari, Ram Pal and Ram Sagarhad been paid wages for the period with effect from 28th January, 1971.What is the explanation thereof if the petitioner did not incur any electionexpenditure before 1st of February, 1971. Sri Yashpal Kapur, tried toexplain the earlier mentioned entries in the return of election expenses by


saying that, since the District Congress Committee had put it to him thatthe aforesaid expenditure had been incurred by them for organising theelection of any person who may later hold himself/herself out to be acandidate, he considered it appropriate to repay that amount as well tothe D.C.C. This explanation again is not convincing. Needless to saythat Sri Yashpal Kapur offered no explanation whatsoever about thevouchers. Ft is, therefore, difficult to accept that part of the statement of

. Sri Yashpal Kapur wherein he said that he incurred no expenditure inconnection with the election of the respondent no. 1 p^or to 1st of Feb-ruary, 1971.

It appears that when the return of election expenses was hied, it was•not realised that the fact of respondent no. 1 having held herself out as acandidate on 29th December, 1970 and the fact of Sri Yashpal Kapur,having started doing election work for her shortly thereafter could createany complications. It was for this reason that the expenditure was enteredin the dates in which it was incurred. When, however, the present petitionwas filed, it was presumably realised that any admission to the effect thatthe respondent no. 1 held herself out as a candidate on 29th December,1970 cr that Sri Yashpal Kapur, started working for her shortly thereaftercould create complications. The respondent no. I, therefore, took thestand that she held herself out as a candidate for the first time on 1st ofFebruary, 1971, and that she did not ask Sri Yashpal Kapur or any otherperson to do any work for her till then. Sri Yashpal Kapur, tried to makea statement in conformity with the stand taken by the respondent no. 1and that has given rise to the aforesaid inconsistencies.

Cross-exam'nation was also done with Sri Yashpal Kapur, regardingsome property, said to have been acquired by him in the name of his wife.He admitted that a property had been purchased by his wife in Golf Linkarea for which she had paid something above Rupees four lacs. Accord-ing to him, he contributed a sum of Rs. 50,000 to his wife for that purpose,a sum of Rs. 1,00,000 was advanced to her by his mother-in-law, a littlemore than Rs. 1,00.000 was advanced to his wife by Narang Bank and asum of a little more than Rs. 1,00,000 was given on loan by a familyfriend. He was, therefore, questioned, as to on what conditions the K*answere obtained by his wife, and to that he replied that be was not awareas to on what conditions the loans had been taken. He also pleadedignorance if the building purchased by his wife or part thereof had beenmortgaged in favour of any of those persons from whom loans were taken.or if any pronote or bonds has been executed in that connection. He alsopleaded ignorance about the covered accommodation in the building pur-chased by his wife. Now, it cannot be ignored that the building had beenpurchased by a person no other than the wife of Sri Yashpal Kapur. Itis not his case that the relations between him and his wife are strained.On the other hand, on his own admission, he contributed Rs. 50,000towards the purchase of the building. In that background, it is difficultio accept that Sri Yashpal Kapur. did not know whether any bonds, pro-notes or mortgage deeds had been executed in respect of the loans taken,and about the covered accommodation in the house. Again a perusal ofthe written statement and Additional Written statement filed by the respon-dent no. 1 shows that a number of the paragraphs thereof have beenverified by the respondent no. 1 on the basis of the information receivedfrom her election agent, namely Sri Yashpal Kapur. The respondent no. 1during her deposition also* stated that after she had received copy of theelection petition she had talked to Sri Yashpal Kapur on the subject. Thestatement made by Sri Yashpal Kapur on that point is inconsistent with

E.L.U.] SHRI RAJ NARAIN V. SMT. INDIRA GANDHI 141

that made by the respondent no. 1, for, he stated that he did not discussthe election petition with the respondent no. 1 any time before appearingin Court to give his evidence. His attention was then invited to the veri-fication clause contained in the written statement and he said : "I still main-tain that I did not have any talk with the; respondent no. 1 about theelection petition."

From the above discussion of the statement made by Sri Yashpal Kapur•it would appear that it is not a statement of straightforward nature and onseveral points it is an admixture of half truths and untruths. Consequently,no reliance can be placed on that part of his statement wherein he deniedto have said anything in his speech on 7th January, 1971 pertaining to thecandidature of the respondent no. 1. It may also not be out of place toadd that since it is Sri Yashpal Kapur himself who was charged withhaving rendered the assistance to the respondent no.l in his capacity as aGazetted Officer of Government of India, he could not be expected toadmit it.

Learned counsel for the respondent then urged that even accepting thatSri Yashpal Kapur delivered a speech at Munshiganj on 7th January, 1971and that he canvassed support for the respondent in that speech, he wasnot an election agent on that date, and there is no evidence of the fact thathe had been instructed to do so by the respondent no. 1. Learned counselstressed that consequently, it should not be held on that basis that the res-pondent no. 1 obtained or procured the assistance of Sri Yashpal Kapurfor the furtherance of her election prospects.

I have given my careful consideration to this argument as well, but Iregret my inability to accept the same. As also stated earlier, Sri YashpalKapur was occupying a position of trust and confidence with the respon-dent no. 1 s'nce quite a long time. During the period in question he wasOfficer on Special Duty in the respondent no. l's Secretariat. In 1967 hehad resigned from his post for the sake of respondent no. 1 to be ableto do her election work in the constituency. After that was done, he wastaken back in the respondent's Secretariat as Officer on Special Duty. Res-pondent no. 1 held herself out as a candidate on 29th December, 1971.On 5th of January. 1971 Raja Dinesh Singh was sent to the constituency.On 7th of January, 197! Sri Yashpal Kapur visited Rae Bareli and, on theown admission of respondent no. 1, he did so with previous notice to therespondent no. I. The subsequent events also appear to be material, for,according to Sri Yashpal Kapur, immediately on return from Rae Barelihe held a talk with the respondent no. 1 on 9th or 10th of January, 1971,on 13th January, he again resigned from the post and the same day set outonce again for the constituency of the respondent no. !. It was againhe who was ultimately appointed election agent for the respondent no. 1.It may be added that it was not possible to adduce any direct evidence onthe point whether the respondent no. 1 instructed Sri Yashpal Kapur togo to Rae Bareli on 7th January, 1971 for any election work. That canbe inferred only on the basis of the surrounding circumstances. 1 havealready mentioned those circumstances above and to my mind the onlyinference that can be drawn on the basis of those circumstances is that therespondent no. 1 went to Rae Bareli on the aforesaid date under instruc-tions of the respondent no, 1 for doing preliminary work pertaining to herelection.

To sum up, therefore, it is satisfactorily proved that the respondentno. 1, during the period ending on 13th January, 1971, obtained/procuredthe assistance of Sri Yashpal Kapur, a Gazetted Officer in the Government

142 SHRI RAJ NARAIN V. SMT, INDIRA GANDHI [VOL. LVII

of India for the furtherance of her election prospects, inasmuch asSri Yashpal Kapur was made to go to Rae Bareli on 7th January, 1971and deliver a speech at Saheed Mela in Munshfganj canvassing support forher candidature.

The period from 14th January, 1971 to 25th January, 1971

There is no controversy about the fact that Sri Yashpal Kapur tenderedhis resignation from the post of Officer on Special Duty on 13th of January,1971 and the same day he left for Lucknow. Further, on the own admis-sion of Sri Yashpal Kapur, he reached Rae Bareii on 14th of January, 1971.I have already held earlier that on 7th of January, 1971 he had gone toRae Bareli in order to start election work for the respondent no. 1 and,while delivering speech in the Saheed Mela in Munshiganj, he solicitedsupport for the respondent no. 1. He returned to Delhi on 8th January,197J, and on 9th or 10th January, 1971 he held talks with the respondentno. 1. In the context of my finding that he had gone to Rae Bareli on7th of January, 1971 for doing election work it should be inferred thatpresumably he talked about the same during the conversation that he hadwith the respondent no. 1 on 9th or 10th of January, 1971. The fact thathe resigned on 13th of January, 1971 with a view to do political workand directly came to Rae Bareli, in that background, is a strong pointer tothe conclusion that he did so with a view to do election work for the res-pondent no. 1. It is also worthy of notice in this connection that voucherno. 49 accompanying the return of election expenses (Exh. 5) of the respon-dent, relates to the salary paid to Siraj Ahmad as driver of the jeep thatwas admittedly used by Sri Yashpal Kapur for doing election work forthe respondent no. 1. A perusal of this receipt shows that Siraj Ahmadwas paid his salary for the period commencing from 15th of January, 1971.This voucher also, therefore, proves that at least with effect from 15th ofJanuary, 1971 Sri Yashpal Kapur started doing election work for the res-pondent no. 1. It may be mentioned at this place that the explanationgiven by Sri Yashpal Kapur about the aforesaid voucher has already beenheld by my earlier to be unworthy of acceptance.

The statement of Sri Mohan Lai Tripathi (P. W. 59), General Secre-tary, District Congress Committee (R), Rae Bareli, also lends support tothe fact that during the period commencing from 14th of January, 1971Sri Yashpal Kapur was doing election work at Rae Bareli. He saidthat till 1st of February, 1971 they were making propaganda for votesbeing cast in favour of the Congress candidate. He, however, addedthat they were not canvassing for any particular candidate. He furthersaid that Sri Yashpal Kapur also did canvassing in a similar manner.

The fact that Sri Yashpal Kapur did work pertaining to eke'ionduring his stay at Rae Bareli with effect from 14th of January. 1971 alsofinds some support from the additional written statement filed by merespondent no. 1. In para lib) the respondent no. 1, inter alia, pleaded:

"The statement in the amended paragraph 5 of the petition that SriYashpal Kapur, at the direction of this respondent, organisedthe electioneering work for her during the entire period com-mencing from 27th December, 1970, is denied, except that,Sri Yashpal Kapur did some work in the constituency, thoughthere was no electioneering work done by him for this respon-dent till a few days before his appointment as election agent"(underlining is bv me).


By the aforesaid pleading the respondent no. 1 appears to haveadmitted that Sri Yashpal Kapur did some work in the constituency priorto his being appointed as election agent and that a few days before hisappointment as election agent he also did some electioneering work torthe respondent. In para 2(c) the respondent no. 1, inter alia, pleaded :

"I: is also denied that Sri Yashpal Kapur made any speech on 7thof January, 1971 in support of her candidature. Though a jewdays even before his appointment as election agent he did makespeeches appealing to the voters for the Indian National Con-gress but not particularly for any candidate or canvassing for thisrespondent" (underlining is by me)."

This part of the pleading appears to be inconsistent with the above-quoted pleading contained in para 2(b) of the petition, inasmuch as whilethe pleading contained in para 2{b) of the additional written statementconcedes that some electioneering work was also done by Sri YashpalKapur for the respondent no. 1 a few days before his appointment aselection agent, it is denied in the above-quoted pan of the pleading con-tained in para 2(c) of the additional written statement. A cumulativereading of para 2{b) and para 2(c) of the additional written statement,however, shows a clear concession on the part of the respondent no. 1that Sri Yashpal Kapur was doing some election work at Rae Barelibefore his appointment as election agent, though that work was notparticularly for any candidate. Now, once it is accepted that, duringthe period before his appointment as election agent, Sri Yashpal Kapurwas doing work pertaining to election within the constituency, it shouldbe inferred that the work related to the candidature of the respondentno. 1, in view of my finding recorded earlier that the respondent no. 1had held herself out as a candidate on 29th of December, 1970. The factthat the respondent no. 1 was a candidate from Rae Bareli constituencywith effect from 29th December, 1970 and the fact that Sri Yashpa!Kapur had also gone to Rae Bareli on 7th January, 1971 and had thendelivered a speech in support of her candidature, rather make it obviousthat during the period between 14th of January, 1971 and 25th of January,1971 also the work done by Sri Yashpal Kapur at Rae Bsrelj pertainedto the election of the respondent no. 1.

Therefore, the circumstances emanating from the additional writtenstatement of the respondent no. 1, from the statement on oath made bySri Yashpal Kapur (R. W. 32) and from the statement made by Sri MohanLan Tripathi (P. W. 59) towards the end of his cross-examination, it isclearly borne out that during the period between 14th of January. 1971and 25th of January, 1971 Sri Yashpal Kapur was doing election workfor the respondent no. 1.

Coming to the specific instances, it is first alleged thai, on 14th >'fJanuary, 1971 Sri Yashpal Kapur led a fleet of cars through the townof Rae Bareli as part of the election propaganda for the respondent no.1. The oral evidence relied upon by the petitioner in this connectionconsists of the statements of Unia Shanser Yadav (P. W. 45) and RamKumar Singh (P. W. 42).

Sri Uma Shankar Yadav is a practising Advocate. H;; stated thaton 14th of January, 1971 a number of vehicles started in processionfrom the Central Election Office, Rae Bareli, carrying posters and bannersin favour of the candidature of respondent no. 1. He added that loud-speakers were fitted on the vehicles; and the people on the vehicles.


appealed to the public through the loudspeakers that they should givevotes to the respondent no. 1 and should make her successful. He.however, did not claim to have seen Sri Yashpal Kapur in that proces-sion, though he added that he had seen him round about 15th ofJanuary, 1971 doing election propaganda. Learned counsel for thepetitioner urged that Uma Shankar Yadav (P. W. 41), according to anadmission elicited in his cross-examination, was a staunch worker of theS.S.P., and that during the elsc'ion of 1971 ne worked as counting agentfor the petitioner besides working for him in connection with his electioncampaign. Learned counsel stressed that Uma Shankar Yadav is, there-fore, a strongly partisan witness and consequently no reliance can safelvbe placed on his testimony.

There is more than one reason, however, for which I am unable toaccept the criticism levelled by learned counsel for the petitioner. SriUma Shankar Yadav is a practising Advocate and therefore a respectableperson. It was not put to him in cross-examination that no processionof vehicles was taken out by the Congress Party in Rae Bareli on 14thof January, 1971 and that the statement made by the witness was anoutright lie. On the contrary the following question was put to him :

"Q. Is it not correct that the propaganda that was started on 14thJanuary, 1971 by the Congress men was for the success of theCongress Party in the election and not for a particular candidate?"

This question contains a clear suggestion to the effect that eventhough the election propaganda had started on 14th of January, 1971,as deposed by this witness it was for the success of the Congress Partyand not for any particular candidate. Further, the statement of thiswitness is corroborated by the evidence of Ram Kumar Singh (P. W. 311In the contest of these circumstances, there does not appear any risk inrelying on the testimony of Sri Uma Shankar Yadav, Advocate, ev-snthough he is a partisan witness.

Sri Ram Kumar Singh (P. W. 42) deposed that on 14th of Jarmarv.197 i a fled of cars started under the leadership of Sri Yashpal Kapur,that the procession moved throughout the town and publicity was madethat respondent no. 1 was contesting election, as she did on the previousoccassion, and further that she should be made successful. In cross-examination a suggestion was made to him that there were no bannerson the vehicles, showing "Indira Ji ko vote do" and that the only propo-ganda being made was "Indira Congress ko jitao'\ The relevant portionof the statement reads as follows:

"It is wrong to say that there was no banner on any of Incisevehicles, saying 'Indira Ji ko vote do'. It is also wrong to saythat the only propaganda being made was 'Indira Congress V>Jitao'."

It will thus appear that in the cross-examination of Ram Kuma*Singh as well, it was not put that the statement made by him regardinga fleet of cars having been taken out on 14th of January, 1971 was falseab initio. The tend of the cross-examination, on the contrary, was thateven though a fleet of cars or jeeps was taken out, the only propagandadone from those cars and jeeps was that 'Indira Congress' should be madesuccessful and not that 'Indira Ji' herself should be made successful.


That being the shape of cross-examination, there does not appear anygood justification for refusing to accept the statement on oath made byRam Kumar Singh.

Learned counsel for the respondent no. 1 no doubt urged that RamKumar Singh is a member of the Organisation Congress and that h?worked for the respondent no. 1 in the election. True, if is so. Thefact, however, remains that, with the shape of cross-examination donewith Ram Kumar Singh, that circumstance is not sufficient to lead to theconclusion that the statement made by Ram Kumar Singh about thefleet of cars having been taken out in the town on 14th January, 1971under the leadership of Yashpal Kapur is a lie.

The petitioner also relied on the news item published in the issuedated 22nd January, 1971 of 'Swtantra Bharat' (Ex. 39) in support ofthe fact that a fleet of cars had been taken out by Sri Yashpal Kapuron 14th of January, 1971. Since however, the person who reportedthe relevant news item has not been examined, it may not be very sateto act thereon even as a piece of corroborative evidence. I would accord-ingly not take that news item into consideration.

On the side of the respondent, there is the sole testimony of SriYashpal Kapur (R. W. 32) who said that he did not take out any fleetof cars in the town on the 14th January, 1971. I have however, alreadydiscussed the evidence of Sri Yashpal Kapur in detail earlier and haveconcluded that he is not a reliable witness. I accordingly find that theevidence of Sri Yashpal Kapur fails to rebut the evidence of Sri UmaShankar Yadav (P. W. 41). and Ram Kumar Singh (P. W. 42).

On the evidence of Sri Uma Shankar Yadav (P. W. 41) and RamKumar Singh (P. W. 42), it is borne out that a fleet of cars and jeepswas taken out in procession on 14th of January, 1971 doing propagandafor the respondent no. 1 and Sri Yashpal Kapur was associated with it.

It is next alleged that on 17th of January, 1971 an election meetingwas held at the Clock Tower, Rae Bareli, in which Sri Chandra Shekharand Sri Yashpal Kapur (R. W. 32), participated. The oral evidencerelied upon by the petitioner in that connection consists of the statementsof Sri Ram Kumar Dixit alias Phakkar (P. W. 31) and Ram Kumar Singh(P. W. 42).

Ram Kumar Dixit alias Phakkar (P. W. 31) speaking on the point,deposed that Sri Yashpal Kapur was also present in the meeting, thoughhe did not remember whether he delivered any speech in that meetingor not. The witness further said that some excitement and shouting ofslogans took place at the meeting and displeasure was expressed againstSri Yashpal Kapur in the slogans. He proved the news item (Exh. 69)contained in the issue of 'Beer Baiswara' dated 23rd January, 1971.pertaining to that meeting. He deposed that as a reporter of "BeerBaiswara" he had himself sent the report about that news item. Inthe news item (Exh. 69) it is stated that disturbance was created in theelection meeting of the respondent no. 1, held on 17th January, 1971 atthe crossing of» the Clock Tower, Rae Bareli which was addressed bySri Chandra Shekhar, when some young persons made some accusationsagainst Sri Yashpal Kapur and shouted slogans against him. It is furtherreported in the news item that some counter slogans were also shoutedthereafter. I have considered the statement made by Sri Ram KumarDixit earlier in connection with the speech delivered by Sri Yashpal

146 SHRI RAJ NARAIN V. SMT. INDIRA GANDHI [VOL.LVII

Kapur at Munshiganj on 7th January, 1971 and have come to the conclu-sion that he is a reliable witness. Further the statement made by Sri RamKumar Dixit regarding the meeting that took piace on 17th January, 1971ft supported by the news item (Exh. 69), which was published in ''BeerBaiswara" on 23rd January, 196^ Indeed, it cannot be said that thisissue of "Beer Baishwara" was prepared later on for the purposes of theelection meeting. It may aiso be added at this place that the factum ofan election meeting having taken place as deposed by Sri Ram KumarDixie was not seriously challenged on behalf of the respondent, as wouldappear from the following question that was pat to Ram Kumar Dixit incross-examination :

"I put it to you that this meeting was convened for the purpose ofmaking a propaganda in favour of the Congress as a party."

This question contains a clear admission of the fact that a meetingdid lake place as alleged bv the petitioner.

For all these reasons, I see absolutely no justification for refusing toact on the testimony of Ram Kumar Dixit alias Phakkar (P. W. 31).

Coming to the evidence of Ram Kumar Singh (P. W. 42), he deposedthat an election meeting was convened at the Clock Tower in Rae Barelion 17th of January, 1971 and that, when Sri Yashpal Kapur wanted todeliver a speech in that meeting, some disturbance was created by thestudents as a result of which he could not do so and the meeting wasthen controlled by Sri Chandra Shekhar. Referring to the speech of SriChandra Shekhar, the witness said that he canvassed support for the res-pondent no. 1 in his speech. It is true that Ram Kumar Singh is astaunch worker of the Congress (O) Party and had also worked for thepetitioner in the election that took place in 1971. In view, however, ofthe fact that the factum of the meeting is not seriously challenged onbehalf of the respondent no. 1, as is apparent from the earlier mentionedquestion put to R. K. Dixit (P.W. 31) and further in view of the fact thatthe evidence of Ram Kumar Singh, is amply supported by the evidenceof R. K. Dixit and the news item (Exh. 69), published in the issue of'Beer Baiswara' dated 23rd January, 1971, I see no risk in acting on theevidence on Ram Kumar Singh as well.

The respondent examined Sri Vimal Chand Dwivedi (R. W. 18), andSri Yashpal Kapur (R. W. 32) in rebuttal. Sri Vimal Chand Dwivediaccepted that a meeting had taken place at the Clock Tower, Rae Bareliwhich was addressed by Sri Chandra Shekhar. He, however, added thatSri Yashpal Kapur was not present in that meeting. A perusal of his cross-examination, however, shows that he is not at all a truthfull witness. He saidthat the meeting addressed by Sri Chandra Shekhar was not an electionmeeting. I have already shown earlier that the case put to Sri R. K. Dixit(P. W. 31) in cross-examination was that the meeting was an election meet-ing, though propaganda in that meeting was being done for the Congressas a party and not for any candidate. The statement to the contrarymade by Sri Vimal Chand Dwivedi must, therefore, be rejected as incorrect.Again, Sri Dwivedi went to the extent of saying that Sri Yashpal Kapurdid not visit. Rae Bareli on 7th January, 1971 a fact admitted by SriYashpal Kapur himself. It was also elicited in his cross-examination thatthe brother of this witness is a lecturer in Feroz Gandhi College and SriYashpal Kapur is the Vice President of the Managing Committee of thatCollege. It appears that he gave statement under that influence. The

H.L.R.] SHR1 RAJ NARA1N V. SMT. INDIRA GANDHI 147

influence was so great that he went to the extent of denying even admittedfacts, namely that Sri Yashpai Kapur. visited Rae Barelj on 7th otJanuary, 1971 with Sri Gulzari Lai Nanda. Obviously no reliance can beplaced on the evidence of such a witness.

As for Sri Yashpal Kapur. I have already considered his evidenceelaborately earlier and have not found him to be reliable witness.

There being no other evidence on the side of the respondent, theevidence of Sri R. K. Dixit (P. W. 31) and Ram Kumar Singh (P. W. 42)-remains unrebutted. On the basis of that evidence I conclude that anelection meeting of the respondent no. 1 was convened on 17th of January,1971 at the Clock T.v-ver, Rae Barcli, and that Sri Yashpal Kapur, partici-pated in that meeting.

It is next alleged thai on 19th of January, 1971 Professor Sher Singh,' a Minister of State in the Government of India, and Sri YashpalKapur, addressed a meeting in village Nihasta and in those speeches they,inter alia, canvassed support for the candidature of the respondent no. 1.It is true that Raj Kishore Singh belongs to Jan Sangh Party and lookedafter the election work of the petitioner at Nihasta polling station. It is,however, significant to find that in the cross-examination of Raj KishoreSingh a question was put to him, which is as follows:

"I suggest to you that Sri Yashpal Kapur only said that we shouldsupport the leadership of the respondent no. 1 and the Congress."

The above question implies a clear admission that Sri Yashpal Kapurwas not only present with Professor Sher Singh, when the latter addressedthe meeting at Nihasta on 19th January 1971, but further that he alsodelivered a speech. All that was sought to be contended was thai inthe speech canvassing was done not for the respondent no. 1 but for theleadership of the respondent no. 1 and for the party. Now, once it isaccepted that respondent no. 1 had given herself out as- a candidate fromRae Bareli on 29th December, 1970, even seeking support from theelectorate for the leadership of the respondent or for the Congress as aparty meant nothing except soliciting support for the respondent no. 1in the constituency. Learned counsel for the respondent no. 1 arguedthat the above question does not contain any admission to the effectthat Sri Yashpal Kapur was present at Nihasta on 10th January 1971or that he delivered any speech whatsoever. Learned counsel submittedthat the above quoted question was put because there was no means toknow till that state whether Sri Yashpal Kapur was actually present in themeeting or not. In other words, it was just a probing question. Theexplanation offered by learned counsel for the respondent no. 1 is notacceptable to me. Learned counsel for the respondent no. 1 had theadvantage of being instructed by more than one pairokar. One of them,namely Sri Jagpat Dubey was always present by the side of the learnedcounsel. Further, Sri Yashpal Kapur was no other than the electionagent of respondent no. 1. In the circumstance'-, the explanation soughtto be given by learned counsel for the respondent appears to be mereafter thought.

The only infirmity in the evidence of Raj Kishore Singh P. W- isthat according to him Professor Sher Singh visited village "Nihasta on19th January, 1971, while according to the tour programme (Ex. *1) heshould have visited that village on 18th January, 1971. I cannot,however, ignore the fact that Raj Kishore Singh P. W. was examined as


a witness in the case after a lapse of more than three years. Further,Piofessor Sher Singh was present within the district on both the dates.The mistake about the date in the statement of Raj Kishore Singh P. W-can therefore be due to lapse of time and consequent confussion in hismind. The evidence of Raj Kishore Singh cannot be discarded on thataccount.

I thus see no justification for refusing to act on the testimony ofRaj Kishore Singh (P. W. 26).

In order to rebut the evidence of Raj Kishore Singh, the respondentno. 1 examined Jagannath Prasad (R. W. 16) and Krishna Dutta Pandey(R. W. 17).

Jagannath Prasad (R. W. 16) is a resident of village Nihasta, KrishnaDatt Pandey (R. W. 17) was Sub-Postmaster in the Sub-Post Office,Nihasta during the year 1971. Both of them deposed that ProfessorSher Singh, visited village Nihasta on 18th January. 1971 to inauguratethe Telephone Exchange Section in the Sub-Post Office.It was further stated by them that Sri Yashpal Kapur,was not present at the said inaugural function. Their evidencecannot be accepted for the simple reason that it is inconsistent with therespondent no. 1's case, as was clearly put to Raj Kishore Singh (P. W. 26}in cross-examination. It appears that till quite a late stage the respon-dent no. 1 did not intend to deny the presence of Sri Yashpal Kapur,in the function that, took place at Nihasta in connection with the inaugu-ration of the Telephone Exchange Section in the Sub-Post Office, andthat it was only when the respondent entered on her defence that it wasdecided to deny that fact. Indeed, it is never difficult forany party to find one or two witnesses to bolster up his case, whether itis true or false.

Therefore, placing reliance on the evidence of Raj Kishore Singhin preference to the evidence of Jagannath Prasad (R. W. 16) and KrishnaDutta Pandey (R. W. 17), 1 hold that Sri Yashpal Kapur, was presentlat Nihasta when Professor Sher Singh inaugurated the TelephoneExchange Section in the Sub-Post Office there and that Sri YashpalKapur, on that occasion delivered a speech, saying that the respondentno. 1 was to contest election from Rae Bareli and that people shouldsupport her.

It is next alleged that on 19th of January, 1971, Professor SherSingh and Sri Yashpal Kapur, attended a meeting held in Lalganj andthat at the said meeting Sri Yashpal Kapur said that respondent no. 1would contest election from Rae Bareli constituency and that peopleshould make her successful. The only evidence adduced by the peti-tioner in proof of the above fact is that of Sri Girish Narain Pandey(P. W. 30). Sri Girish Narain Pandey, however, conceded in cross-examination that during the year 1971 he was a worker of the JanSangh Party and that during the year he was examined in Court, he wasa member of the Rashtriya Swayam Sewak. He further conceded thathe actively supported the petitioner in the election and had worked forhim as a counting agent as well as polling agent. He is, therefore, apartisan witness. There being no evidence to corroborate the evidenceof Girish Narain Pandey, it will not be safe to place reliance on histestimony.


The respondent examined Abdul Jabbar (R. W. 25), Fateh BahadurSingh (R. W. 26), Ishwar Chand (R. W. 27) and Ranjit Singh (R. W. 28)to rebut the evidence of Girish Narain Pandey. In view, however, ofthe fact that I have not considered it safe to place reliance on the soli-tary evidence of Girish Narain Pandey, it is needless to refer to theevidence of the aforesaid witnesses of the respondent no. 1 in any detail.

1 accordingly find that the petitioner failed to prove that Sri YashpalKapar delivered any speech of the nature alleged at Lalganj on 16th ofJanuary, 1971.

It is nc.-st alleged that on 19th of January, 1971 inaugural functionof the Telephone Exchange Section took place at Behta Kalan and inthat connection Professor Sher Singh, accompanied by Sri Yashpal Kapurvisited village Behta Kalan. It is also alleged that on that occasion SriYashpal Kapur delivered a speech saying that the respondent no. 1 wouldcontest election from Rae Bareli and that people should make hersuccessful. The petitioner examined Pandit Sheshank Misra (P. W. 32),who made a statement in support of the above said allegation.

Learned counsel for the respondent no. 1 pointed out that the fatherof Pt. Sheshank Misra P. W. is a member of the Jan Sangh WorkingCommittee, and that during the year 1971 he himself was polling agentfor the petitioner. It is true that Pt. Sheshank Misra himself candidlyaccepted both the aforesaid facts during his cross-examination. It is,however, once again worthy of notice that in the case that was rut toPt. Sheshank Misra (P. W. 32) it appears to have been clearly concededthat Sri Yashpai Kapur was not only present at the inaugural functionthat took place at Behta Kalan on 19th January, 1971 but that he alsodelivered some speech. This is apparent from the following questionspvt to him:

"Q. I put it to you that the moment Sri Yashpal Kapur startedspeaking there was an excitement and uproar as a result of whichno person in the meeting could hear what was being said bySri Yashpal Kapur ?

A. It is wrong.

Q. I put it to you that Sri Yashpal Kapur did not say anythingregarding the candidature of respondent no. 1. from Rae Bareliparliamentary constituency and that he made an appeal only forthe help to be given to the congress in general ?

A. This is wrong."

Learned counsel for respondent no. 1 once again offered the sameexplanation for having put these questions as were given in connection^'ith the suggestion that was made to Raj Kishore Singh (P. W. 26) incross-examination. I have already said at that stage the explanation isnot at all well founded. I have the same reply to give to the expira-tion sought to be given by learned counsel for the respondent no. 1 inregard to the above quoted questions put to Pt. Sheshank Misra. Inthat view of the matter, it has to be accepted th?t Sri Yashpal Kapurwas present at Behta Kaian on 19th of T?"v-::y, 1971 when ProfessorSher Singh inaugurated the Telephone Exchange Section there, and thathe delivered an election speech on that occasion. In view of my find-ing earlier that V f'rit time the respondent no. 1 had held herself outas a Candida-.-,.- ;V:m Rae Bareli Parliamentary Constituency, it followsi! -345 Elec. Com./ND/81


that in the election speech delivered by Sri Yashpal Kapur he shouldhave solicited support for the respondent no. 1 as deposed by Pt. SheshankMisra.

The respondent no. 1 examined Shitla Bux Singh (R. W. 14) andRaghubans Bahadur Singh (R. W. 15) in order to rebut the evidence ofSheshank Misra. One of the reasons why the respondent no. 1 choseto examine these persons in his defence, presumably, was that SheshankMisra P. W. had filed a notice (Ex.-70) said to have been issued to the publicin regard to that took place at Behta Kalan on 19th January, 1971This notice, inter alia mentioned that Sri Yashpal Kapur, Private Secre-tary of the Prime Minister, shall also be present on the occasion. Thenotice was issued under the signatures of Shitla Bux Singh and RaghubansBahadur Singh R. Ws. besides Gupta Singh, M. L. A. Both these wit-nesses deposed that Professor Sher Singh inaugurated Telephone Exchangeat Behta Kalan on 19th January, 1971. They, however, denied thepresence of Sri Yashpal Kapur on that occasion. In view, however,of the clear case that was put to Sheshank Misra in cross-examinationadmitting the presence of Sri Yashpal Kapur in the function that tookplace at Behta Kalan on 19th January, 1971, no reliance can be placedon the statement of Shitla Bux Singh and Raghubans Bahadur SinghR. Ws. denying his presence in that function.

I accordingly find fhat Sri Yashpal Kapur did deliver a speech atBehta Kalan on 19th January, 1071 wherein he solicited support for thecandidature of the respondent no. 1 in the election.

The last allegation is that on 18th of January, 1971! Professor SherSingh laid the foundation stone of the new building of the Post Officeat Rae Bareli and in the function held there Sri Yashpal Kapur delivereda speech convassing support for the respondent no. 1. The onlyevidence relied upon by the petitioner in that connection is that of UmaShanker Yadav (P. W. 41). A perusal of his statement would show thatwhile he deposed about the foundation-stone laying ceremony of thePost Office building at Rae Bareli by Professor Sher Singh, he did notdepose either about the presence of Sri Yashpal Kapur at that function orabout any speech having been delivered by him. It will thus follow that thereis no evidence on the side of the petitioner in support of that allegationand that allegation is accordingly not proved.

The period from 25th of January to 6th of February, 1971.

Learned counsel for the petitioner urged that unless an order accept-ing the resignation is communicated to the Government servant concernedthe resignation does not take effect. Learned counsel further urged thatit is not disputed even to the respondent that Sri Yashpal Kapur hadstarted doing election work for her with effect from 1st of February,1971. It was urged that the resignation of Sri Yashpal Kapur havingbeen Gazetted on 6th of February, 1971 it should be inferred that it wascommunicated to Sri Yashpal Kapur on that date and it was on the samedate that it took, effect. On this "reasoning, learned counsel urged thatthe act of the respondent no. 1 in obtaining the assistance of Sri YashpalKapur between 1st of February, 1971 and 6th of February, 1971 shallalso constitute a corrupt practice under section 123(7) on the Representa-tion of the People Act.

I have, however, already held on the basis of the decision of theSupreme Court in case Raj Kumar versus Union of India (A. I. R. 1969Supreme Court 180) that a resignation takes effect on the date it is

•E.L.R.] SHRi RAJ NARAIN V. SMT. INDIRA GANDHI 151

accepted and Uiat Irs formal communication to the Government servantconcerned is not necessary. As also stated earlier, the order accepting

"the resignation of Sri Yashpal Kapur was passed on 25th of January,1971, as is apparent from the Gazette' notification. Sri Yashpal Kapurtherefore, ceased to be a Government servant with effect from that date.Consequently, on the basis of anything done by Sri Yashpal Kapur forthe rcsponden: no. I during the period between 25th of January, 1971and 6th ol February, !071, the respondent no. 1 cannot be held guiltyof having committed a corrupt practice.

?viy conclusion, therefore, on Issue no. 1 (First set) read with Issueno. I {of the additional issues) i.s that the respondent no. 1 obtained andprocured the assistance of Sri Yashpa] Kapur during the period from7th of January. 1971 to 24th of January, 1971 in "furtherance of herelection prospects, when Sri Yashpa] Kapur, was still a Gazetted Officerin the service of the Government of India holding the post of Officeron Special Duty in the Prime Minister's Secretariat; and the respondentno. 1 is hereby guilty of the Commission of a corrupt practice undersection 123(7) of "the Act.

ORDERElection petition :

In view of my findings on issue no. 3 (first set) issue no. 1 (first sd)read with Additional Issue no. 1, Additional Issue no. 2 and AdditionalIssue no. 3, this petition is allowed and the election of Srimati IndiraNehru Gandhi, respondent no 1, to the Lok Sabha is declared void.

The respondent no. 1 has been found guilty of having committed acormpt practice under section 123(7) of the Representation of thePeople Act by having obtained the assistance of the Gazetted Officersof the State Government of U. P. viz. the District Magistrate, Rae Barell,the Superintendent of Police, Rae Bareli, the Executive Engineer, P. W. D.,Rae Bareli, Engineer, Hydel Department, Rae Bareli,, in furtherance oiher election prospects in the manner indicated my finding on issue no. 2.She has further been found guilty of having committed another corruptpractice under section 123(7) of the Representation of the People Actby having obtained the assistance of Sri Yashpal Kapur, a GazettedOfficer in the Government of India, holding the post of Officer on SpecialDuty in €he Prime Minister's Secretariat, for the furtherance of her elec-tion prospects in the manner indicated in my finding on Issue no. 1read with Additional Issue no. 1. The respondent no. 1 accordinglystands disqualified for a period of six years from the date of this order,as provided in section 8-A of the Respresentation of the People Act.

The petitioner shall get his costs of the election petition from therespondent no. 1. A table of costs shall be prepared by the office <raccordance with rule 30 Chapter XV of the Rules of Court.

Writ petition :As already pointed out while recording my findings on Issue no. 9,

the petitioner has not been able to lay any foundation on facts to compelan inquiry into the constitutionality of the Representation of the People(Amendment) Ordinance 1974 (No. XIII of 1974) or that of the Repre-sentation of the People (Amendment) Act, 1974 (Act no. 58 of 1974).The writ petition no. 3761 of 1975, is accordingly rejected. The partiesshall bear their own costs in the writ petition. Petition allowed.

152 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

IN THE SUPREME COURT OF INDIASMT. INDIRA NEHRU GANDHI

VSRI RAJ NARAIN AND ANOTHER

(V. R. KRISHNA IYER, J.)

June 24, 1975

Representation of the People Act, 195!, s. \16-B and BID. Applicationseeking absolute stay of High Court order setting aside appellant'selection—Elements to be considered in exercise of discretion for grantingstay—Effect of stay of operation of High Court order—Condition ofstay order prohibiting appellant from participating in proceedings orvoting in Lok Sabha as a member—Effect upon her separate rights asMinister.

An election petition challenging the appellant's election to the Lok Sabha at atime when she was Prime Minister was allowed by the High Court en the groundthat certain allegations of corrupt practice during her election had been established.Her election vyas therefore set aside and she was disqualified under Section 8-A for,a period of six years. However, the High Court granted 'an absolute stay' of theoperation of its order for 20 days to enable an appeal to the Supreme Court.

Upon filing an appeal in the Supreme Court, the appellant also sought anabsolute stay of the operation of the High Court order pending disposal of theappeal. It was contended on her behalf that the grounds upon which her election hadbeen set aside were unjustified and in any event highly technical and thai her appealwas therefore expected to be allowed; that the appellant being Prime Minister it wasessential for the satisfactory functioning of the Government that an absolute stay begranted.

HELD: There would be a stay of the operation of the Judgment and Order ofthe High Court under appeal.

Consequentially, the disqualification imposed upon the appellant under Section 8-Awould also stand suspended and the appellant would remain a member of the LokSabha for all purposes except that she could neither participate in the proceedingsin the Lok Sabha nor vote nor draw remuneration as Member of the Lok Sab hi.

Independently of the restriction upon her membership, her rights as PrimeMinister shall not be affected.

The present appeal related solely to the Lok Sabha membership of the .ipo-;ilantand the subject matter of her office qua Prime Minister was not directly b.fo'e thecourt in this litigation. That office and its functions are regulated carefully by aseparate fasciculus of articles in the Constitution.

There is some link between membership of one of the two houses of Pari:::mentand ministership (Article 75) but once the stay order is made the disqualificationregarding membership is in suspended animation and does not operate. Likewise.the appellant's membership of the Lok Sabha remains in force so long as the ta\lasts. However, there will be a limitation regarding the appellant's participation inthe proceedings of the Lok Sabha in her capacity as member thereof, but, indepen-dently of the membership, a Minister and, a fortiori, the Prime Minister, has the rightto address both Houses of Parliament (without right to vote, though) and has otherfunctions to fulfil (Articles 74, 75, 78 and 88 are illustrative). In short, the restric-tions set out in the usual stay order cannot and will not detract from the appellantbeing entitled to exercise such rights as she has, including addressing Parliament anddrawing salary in her capacity as Prime Minister. There will thus be no legalembargo on her holding the office of Prime Minister.

Since the amendment of the Act in 1966, the stay orders made by the SupremeCourt with marginal variations, had acquired a standardized form unless legsl excep-tional and other grounds for deviation were made out for grant of absolute stay.Where there are findings of contraventions of the election law by the High Courtthe Supreme Court could not take a prima facie view indifferent to those findings.

The High Court's finding until upset holds good however weak it may ultimatelyprove. Although the nature of the invalidatory grounds held by the High Court didnot involvs the appellant in any of the graver electoral vices set out in S 123 of the

E L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 1 53

Act, and may be they are only venial deviations, the law as it stands, visits areturned candidate with the same consequence of invalidation. Supposing a candidatehas tiansported one voter contrary to the legal prohibition, then even though he has'.von by a huge plurality of votes his election is set aside. Draconian Laws do notcease to be law in court but must alert a wakeful and quick acting legislature.

C 1 V : L MISCELLANEOUS PETITION NO. 3557 OF 1975in

CIVIL APPEAL NO. 887 OF 1975

IN THE SUPREME COURT OF INDIACivil Appellate Jurisdiction

CIVIL APPEAL NO. 887 OF 1975In the matter of

SMT. INDIRA NEHRU GANDHI Appellant

versus

SHRI RAJ NARAIN & ANOTHER Respondents

CIVIL MISCELLANEOUS PETITION NO. 3557 OF 1975(Application for absolute and unconditional stay with an ex parte ad interim

order)VACATION JUDGE : Hon'ble Mr. Justice V. R. KRISHNA IYER.

ORDER

Right at the beginning, I must record appreciation of the valuableassistance given by counsel on both sides to the Court in clarifying thetwilt aspects and unravelling the latent facets of what, viewed in typicallyisolated legal perspective, untuned to the national wave-length and uncloud-ed by the dust-storms of politics, is a humdrum case. Having regard to theobstreperous environs and mounting tensions surrounding the events follow-ing upon the judgment of the Allahabad High Court, it must be stated tothe credit of Shri Palkhivala and Shri Shanti Bhushan that in their suavesubmissions tbev have shown how sound and fury only help thwart thethought-ways of law and extra-legal tumults can be walled off from theCourt hall. Ths arguments have been largely legal and their merits haveto be weighed in judicial scales. What, perhaps in a certain view, are notstrictly pertinent to the stay proceedings have, however, been adverted toat the bar, inevitably and understandably, but within marginal limits, if Imay say so, because the proceedings in the Halls of Justice must be inform-ed, to some extent, by the great verity that the broad swep of humanhistory is guided by sociological forces beyond the ken of the noisy houror the quirk of legal nicety. Life is larger than law. Now I proceed todiscuss the merits of the matter.

2. The appellant has moved this Court challenging the 'unseating'verdict against her by the High Court. She has also sought 'absolute stay'of the judgment and order under appeal. Entering a caveat, the respon-dent has also appeared through counsel and opposed the grant of stay.

3. Whi'.e fh: right to appeal is statutory, the power to stay is discre-tionary. But judicial discretion — indeed, even executive discretion —cannot run riot. The former, though plenary, is governed in its exercise bysound guidelines, and courts look for light, inter alia, from practice andprecedent, without however being hide-bound mechanically by the past

154 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAP.AIN [VOL. LVII

alone. After all, judicial power is dynamic, forward-looking and sociallyluscent and aware. I mention this dimension of 'judge-power' because theindustry and ingenuity of both lawyers have unearthed prior instanceszigzagging now and then but substantially striking the same note. A feworders from the debris of old records have been brought up which sesm losuggest variations in the type of stay granted by the higher courts. I shallhave occasion to dilate on them a little later. Suffice it lo note that thepower of the court must rise to the occasion, if justice, rn its largerconnotation, is the goal — and it is.

4. Having regard to the historic power-stakes involved in this electionappeal and stay proceeding, vigorous arguments, marked by strokes of heatand flashes of light, have been heard in this application for stay and thetime consumed at the bar has been considerably more than when likematters have been routinely dealt with by this court. Let it be plainlyunderstood that the Court decides forensic questions without gettingembroiled in non-legal disputes working as it does in a sound-proof systemof sorts. Moreover, notwithstanding the unusual, though natural, excite-ment and importance surrounding the case, the Court is the quiet of thestorm centre and views, with an equal eye, the claims on each side, takingjudicial note of the high issues and balance of convenience in the widercontext. Arguments about public sentiment, political propriety and moralcompulsion, though touched upon at the bar and relevant at other levels,fall beyond the conventional judicial orbit and have to be discriminatinglysifted. Nevertheless, Shri Palkhivala has pressed before me the proprietyand urgency of (he Court taking into consideration the national situationeven while exercising its discretionary power. As a counter-weight to thissubmission,.Shri Shanti Bhushan has claimed that no republic can surrenderits democratic desiiny to a single soul without being nuilty of overpoweringthe parliamentary process by a personality cult. This brings to the forean activist interrogation about the cognisibilhy of such considerations bya court. Do the judicial process and its traditional methodology sometimesmake the Judicature look archa;.\ /1th eyes open on law and closed onsociety, forgetting the integral ycv.s of law and society ? If national crises

and democratic considerations, and not mere balance of convenience andinterests of 'Justice' were to be major inputs in the Judge's exercise •;1:

discretion, systemic changes and shifts in judicial attitudes may perhapsbe needed. Sitting in time-honoured forensic surroundings I am constrain-ed to judge the issues before me by the canons sanctified by the usage ofthis Court

5. Now to the points urged before me. More or less by way ofpreliminary objection, Shri Shanti Bhushan asserted that the petitioner,having come with unclean hands, was not entitled to seek the equitablerelief of stay. How were her hands unclean ? Because, the argument rui;s,her advocate induced the High Court into granting a stay by misrepresentingthat if the judgment came into immediate effect, ;he national Governmentwould be paralysed for want of a Prime Minister and so time was neededfor the ruling party to elect a new leader to head the Government. Taker.in by this alleged critical need of the democratic process, she learned jud:rsgranted 20 days's stay. This spsll ingeniously secured, was perverted toconsolidate her leadership, not to find a successor. If this version of therespondent were veracious, the petitioner's conduct were dubious and thisCourt would not condone such 'solemn mockery". But Shri Shanti Bhushan'ssubmission loses its sting if Shri Palkhiwala were to be heeded. For,according to the latter, all in a hurry a stay was moved by the Allahabad

E .L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAR/.IN 155

advocate praying for stay stating both the need to elect a leader (not,another leader) and to enable filing of an appeal. The Congress parlia-mentary party was since convoked but there was a thunderously unanimousvote reaffirming faith in the petitioner as leader and Prime Minister. If herParty so full-bloodedly plumped in favour of her remaining in office asPrime Minister and guiding the parly as its one and only leader, the peti-tioner could not be faulted as having played false to the Court. She couldonly call a meeting of the party but not coerce the members to elect anyoneother than the one they had set their hearts upon. Whether that Party'sleadership resources were too inadequate to secure and alternative chiefmay be an interesting question, but the Court does not peep into thatpenumbral area. Moreover, the stay order does not state that it was toenable the election of a different leader that time was granted. I have nogood reason to reject the petitioner's plea, that the choice of an alternativeleader was left to her party, that she did what she could in the spirit of therepresentation to Court and did not what she could not viz., to force herpartyrnen to push her aside for the nonce for the Court's satisfaction. Inthese matters one has to go by prima facie materials and probabilities Iover-rule the 'unclean hands' objection.

6. Shri Palkhivala, for the petitioner, contended that an unconditionalstay was appropriate and essential because (a) it was sanctioned by someprecedent; (b) there were momentous consequences disastrous to the countryif anything less than the total suspension of the order under appeal weremade; (c) {he adverse holding of the High Court on two counts hardlyexceeded, even qn its face, technical violations unworthy of being visitedwith an ad interim embargo of Parliament Membership during pendency ofthe appeal apart from being palpably perverse and (d) the nation wassolidly behind the petitioner as Prime Minister. Minimal justice, publicinterest and balance of convenience concurred in his favour. Shri ShantiBhushan, on the contrary, joined issue on these pleas and asserted that (a)the appellant must be treated like any other party (b) that an absolute staywas unprecedented; (c) that the democratic process would take care of itselfeven if the petitioner stepped aside for a whije-. fd) the corrupt practiceswere corrupt in law and fact, fully proved and could not be glossed over bya court of law as technical and (e) the alleged solid support by partyminions meant little since similar phenomena could be organized by anystrategist in top office and the rule of lav/ cannot be drowned by the drumsand shouts of numbers. In his submision, public interest and balance ofconvenience as also justice to the High Court judgment demanded that anillegally elected Member did not continue longer as Prime Minister underthe umbrella of a stay order from this court, without jeopardizing thecredibility of the country abroad.

7. Shri Palkhivala assailed, in his opening submissions, the two find-ings recorded against the appellant holding her guilty of corrupt practice.Indeed, he was at pains to convince me that his client had a strong primafacie case on the merits, in the sense that the judgment, on its face, wasperverse and legally untenable. Although I listened at some length to thesearguments and, to an extent, to the counter-submissions made by Shri ShantiBhushan in his endeavour fo establish that the holdings were sound, I madeit fairly clear in the course of the hearing that at this stage when 1 wasconsidering whether a stay should be granted or not, it was premature andperhaps unwise to pronounce on the merits of the appeal itself except wherethe judgment contained grotesque errors, absurd conclusions or grosslyerroneous propositions of law. Having considered the submissions on thisbasis, I do not think I should express any opinion one way or the other

1 5 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVU

on the merits of the findings. Nor do I regard it just for counsel for therespondent to say that every discrepancy in the petitioner's evidence orother incorrectness in testimony can be called false. Not to accept awitness's evidence may be due to many grounds of probability not alwaysbecause of unvsracity or unreliability. These aspects will surely be examin-ed at the hearing of the appeal, not now.

8. Counsel for the petitioner, after dealing with the ex-jacie untenabi-lity of the judgment under appeal which I have just disposed of, moved onto what he called justice between the parties. This is not an ordinary Us,where even after stepping down from office, the petitioner can, if and aftershe wins the appeal, step back into office. In politics, 'red in tooth andclaw', power lost is not necessarily followed, after legal victory, by powerregained. The Court cannot, in that sense, restore the parties to theiroriginal position as in ordinary cases. Moreover, the respondent suffers noprejudice by the continuance of the petitioner as Parliament Member andPrime Minister. To cap it all, there is hardly a run of a little over half-a-year for the full term of this parliament to expire. So, he pressed forcontinuance of the status quo which had gone on for a few years nowduring the pendency of the Election Petition.

9. The respondent's counsel retorted that the ques!ion of justicebetween two private persons was alien to election litigation and cited aruling (o emphasize what is obvious. In an election case, the wholeconstituency is, in an invisible but real sense, before the court and justiceto the electoral system which is the paramount consideration is best doneby safeguarding the purity of the polls regardless of the little rights ofindividual combatants.

10. At the first flush I was disposed to prolong the 'absolute stay'granted by the High Court, moved not only by what Shri Palkhivala hadurged but by another weighty time factor that the appeal itself, in the lightof the directions I have already given yesterday, may well be decided intwo or three months. But on fuller reflection I have hesitated to take thatcourse. After all, the High Court's finding, until upset, holds good, howeverweek it may ultimately prove. The nature of the invalidatory grourdsupheld by the High Court, I agree, does not involve the petitioner in anyof the graver electoral vices set out in Section 123 of the Act. May be theyare only venial deviations but the law, as it stands, visits a returnedcandidate with the same consequence of invalidation. Supposing a candi-date has transported one voter contrary to the legal prohibition and eventhough he has won by a huge plurality of votes his election is set aside.Draconian laws do not cease to be law in court but must alert a wakefuland quick-acting legislature. So it follows that I cannot, at this preliminarystage, lightly dismiss the illegality of the election as held by the High Court.But more importantly, I am disinclined to set store bv Shri Palkhivala's'private justice' submission (to borrow his own phrase) because the ultimateorder I propose to make, if I may even here anticipate, substantially pic-serves the position of the petitioner as Member of Parliament and does notadversely affect her legal status as Prime Minister.

11. In another facet of the same argument Shri Palkivala urged that,after all, the petitioner had been held 'echnicallv' guilty of 'corrupt practice'and that the grounds set out by the learned Judge were too fiimsv to standscrutiny at the appellate level. Therefore, the 'justice' of the case demandedcontinuance of the 'absolute stay' granted by the trial judge himself. ShriShanti Bhushan, on the other side, refuted this submission as specious. His

S.L.R.] SMI. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 157

argument is this. 'Corrupt practice' could not be dismissed as 'tcehnical'if one had any respect for the law of the land as laid down by Parliaafteat.Once the law has denned 'corrupt practice', commission thereof cannot becondoned as 'technical'. That is defiance of the law and challenge to thewisdom of Parliament. It is one thing to amend the law, but it is another todisregard it on a ground unknown to law that it is only a nominal deviance.I am afraid it is premature and presumptuous for me, at this stage, topronounce upon the relative worth of the findings of the High Court. Theoffence may be light or grave. But that is for the Bench which hears theappeal in extenso to hold, one way or the other. Before me are findingsof contravention of the election law and I cannot take the prima facie viewthat the justice of the case justifies indifference to those findings. In short,I am not influenced by this aspect of Shri Palkhivala's argument.

12. Leaving aside the injury to private rights as of lesser consequencein election disputes, let me look at the customary factors courts are proneto prove in stay matters where the discretion vests in court.

13. What has been the prior practice of this Court in such cases '.'What, if any, are the special circumstances compelling departure in favourof the petitioner ? What is the balance of convenience ? What does thepublic justice of the case dictate? Which way does public interest lie?These are the socio-legal considerations which s.re relevant to the grant orrefusal of stay and the terms to be imposed on the petitioner in the eventof grant. Stay pending appeal has been usualy granted but hemmed in byconditions. The respondent himself has filed a sheaf of orders of condi-tional stay granted by this Court, suggesting by implication that thoseconditions should be attached to any stay the Court may be inclined toissue. The terms in which such limited stay orders have been couched, thelegal implications thereof, the right surviving under them and the impactthereof on the office of Prime Minister of the petitioner will be scannedmore closely later in this order. Suffice it to say for the present that foraround two decades there has rarely been what Shri Palkhivala calls an'absolute stay' issued by this court in eleciion cases where a Member hasbeen unseated by the High Court for corrupt practice.

14. There was reference at the bar to political compulsions like theswell of the tidal v.-ave in favour of the petitioner which, even if true(though controverted by the other side), cannot breach the legal dykes toforce a stay where precedentialy it has not been granted. Nor can thenational crisis, conjured up by counsel for the petitioner, in the event ofher exit from office, be a valid legal consideration, even if it may perhapshave weight in other spheres. Shri Shanti Bhushan urges that moieoverone cannot readily accept that the nation will come to a grinding halt ifone person is not available to fill the office of Prime Minister. I made nocomments on these rival presentations for it is difficult for the Judge toguage with his traditional court room apparatus the reality and extent ofthe circumstances of national magnitude the parties have dwelt upon.

15. So we come to the next criterion which is common place in thisjurisdiction viz., the balance of convenience. Here, counsel for the peti-tioner has addressed an attractive argument (repeating in some measurewhat, under a different head, he had urged) that if the appeal itself weredisposed of early, the continuance of the status que would go a long wayto preserve and promote administrative stability and policy continuity,having a regard to the fact that the petitioner in this case was more thana Member of Parliament but was the Prime Minister and leader of the

Tuling Party. In a democracy, the Prime Minister is the central figure who

158 SMT. INDIRA NEHRU GAUNDHI V. SHRI RAJ NARA1N [VOL. LVII

decides crucial internal and international policy, directs measures of greateconomic moment and is responsible and accountable to the Parliamentand the nation for the performance of the Administration. Of course,collective Cabinet responsibility is of the essence of the democratic process,but the Council of Ministers is virtually chosen by the President in accord-ance with the wishes of the Prime Minister. The broad guidance of theParty in power notwithstanding, the personality of a Prime Minister has atelling effect on democratic Government. If, therefore, the appeal itselfwill be disposed of in some months, as it is likely to be, the balance ofconvenience will be in favour of continuance of the same team which isanimated by {he presence of the key personality within the Council ofMinisters. Again, the short spell of the pendency of the appeal — a caseof this climactic pitch deserves to be disposed of with quick dispatch andI have already given some directions to facilitate it — is a.strong factorfor non-disturbance of the petitioner's position, having regard to the trauma-tic effect on and grievous consequences to the petitioner. Of course, theseare components of a wider concept of balance of convenience and notaltogether forbidden ground in dealing with discretionary exercise. May bethere is some force in the plea that there should be a stay of operation ofthe judgment and order in such manner that upsetting the Ministry in officeshould be obviated. Ordinarily, even with the same Party ruling, whena Prime Minister resigns, the whole team is ushered out leaving it free forthe new leader to choose his new set.

16. Shri Shanti Bhushan has countered this argument by reliance onthe practice in the parliamentary system where within the ruling party aleader is changed or ceases to be available and a new leader is elected, sothat the democratic process finds smooth expression. This, he said, hashappened in India, as elsewhere and no plea of balance of convenience canbe built on what in fact is a desire to remain in office. The judicial ap-proach, as already pointed out by me, is to shy away from political thicketsand view problems with institutionalised blinkers on, so long as the courtmethodology remains what it is. So no comments again. But the balanceof convenience, widely or Hmitedly connoted, is reasonably taken care ofin the shape of the conditional stay granted at the conclusion of thisjudgement.

17. Shri Palkhivala drew my attention to a few vintage instances ofwhat he calls absolute stay having been granted in election matters byhigher Courts. These are cases of long ago and the argument based onthem stems from an insufficient comprehension about the anatomy of thepre-1956 Representation of the People Act, 1951 (Act XLIII of 1951). TheCourt speaks for today, based on current practice and present law.

18. In this context it is necessary to remember that in the Act as itoriginally stood, Election Tribunals tried election disputes and 5. 107provided :

"107 Orders to take effect only on publication— An order of theTribunal under section 98 or section 99 shall not take effect untilit is published in the Gazette of India under section 106".

Indeed, there was no right of appeal provided in the Act and the aggrievedparties had to approach the High Court or the Supreme Court under theprovisions of the Constitution. The Higher Courts in such situations mere-ly stayed the publication in the Gazette, the consequence being that theorder of the Tribunal did no', come into effect at all. The question, there-fore, of an absolute stay or a qualified stay of the unseating verdict did not

H.L.R.] SMT. INDIRA NEHRU GANDHI V. SHR] RAJ NARAIN 159

and could not arise. To rely upon orders passed under the then law merely-staying publication of the order of the tribunal in the Gazette as tantamountto absolute stay of an order which took effect would be untenable.

19. In 1956 a major change in the law was made whereby the orderof the Election Tribunal appointed under S. 86 'shall take effect as soon asit is pronounced by the Tribunal' (vide s. 107, as amended by Act XXV11cf 1956). By the sams amending Act, an appeal was provided from ordersof Election Tribunals to the High Court of the State and s. 116A(4) clothedthe High Courts with power to stay operation of the order appealed fromand if stay was granted 'the order shall bs deemed never to have takeneffect'. Of course, against appellate orders of the High Court the disap-pointed party could come to this Court under the provisions, of the Constitu-tion (Arts. 133 or 136).

20. Still later by amending Act No. LXVII of 1966, the High Courtwas conferred original jurisdiction to try election petitions and it was pro-vided in s. 107 that the order of the High Court 'shall take effect as soon asit is pronounced '. While a limited power to stay operation of the orderof the High Court was conferred by s. 116(B)(1) on the High Court itself,the statutory right of appeal to the Supreme Court was provided for bys. 116A. However, by virtue of s. 116B(2) it was enacted :

"1168(2). Where an appeal has been preferred against an order madeunder section 98 or section 99, the Supreme Court may, on sufficientcause being shown and on such terms and conditions as it may thiukfit. stay the operation of the order appealed from".

Thus, for the first time, it was in 1966 that a statutory right of appeal tothis Court was created and a plenary power to grant stay, conditional orotherwise, was vested in this Court, independently of constitutionalremedies.

21. This narration of the historical background regarding the prc-1966 statutory position is sufficient to distinguish old examples of thepattern of stay granted by this Court. Today there is no case of prohibi-tion of publication in the Gazette. Above all, the typedesign, if 1 mayuse such an expression, of stay orders made by this Court under thepresent law has, with marginal variations, acquired a standardized form.Natuarlly. trm cursus curiue is more persuasive for adoption, unlessexceptional legal or other grounds for deviation are made out for grantof absolute stay.

22. Even on the basis of the post-1966 law, Shri Palkhivala hasargued that taking legitimate cognizance of the peerless position of theappellant as Prime Minister of the country, judicial discretion must leastdisturb not merely her seat in Parliament but her office in Government.

23. 1 proceed to take a close-up of the 'sample orders' made by thisCourt during the last many years, dissect them in the background of thejudgment; under appeal where such orders were passed and would myorder deriving support therefrom. So I turn the focus on the implica-tions a r i effect of the stay orders in the ca.-es covered bv Armexure 'A"filed by ihe respondent which are in corr-osance wi'.h the usual ordersparsed bv this Court in e'eetion appeals.

24. it is evident on its face that the orders are dichotomous incharacter. The two limbs stand out clearly and they arc : {a) that'the operation of the judgment and order of the High Court be and is

160 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVFI

hereby stayed' and (b) the petitioner shall abide by certain enumeratedterms viz., (i) he will be entitled to attend the Sessions of the Legislatureand sign the Register; (ii) he shall not take part in the proceedings ofthe House or vote or draw any remuneration as such Member. In theinstances I have examined, the appeals are against orders 'unseating' thsreturned candiate on the ground of corrupt practice and disqualifyinghim for the statutory six-year period prescribed in s. 8A. If corruptpractice is found, disqualification follows, although sometimes the trialCourt expressly writes it into the order itself, as in the present case. Ifthe finding of corrupt practice does not come into effect,, the sequel ofdisqualification also does not come intd effect. If the biopsy of thestay order inevitably shows that the finding of corrupt practice is suspendedand is not operative, the electoral disqualification automatically standseclipsed. Section 8A being the necessary follow-up of the judgmentunder s. 100, what is the legal effect of an order by this Court suspendingthe operation of the judgment and order of the High Court ? By sheerforce of the first limb of this Court's stay order, the judgment and orderof the High Court is nullified for the nonce i.e., till the appeal is disposedof. Consequentially, the disqualification also ipso jure remains in abeyance.

25. What then is the import of the conditions imposed in the stayorder ? They inhibit the elected member, who otherwise by virtue ofthe stay of the judgment, will be entitled to exercise all his rights andprivileges as Member, fromi doing certain things expressly tabooed, viz.,(a) participating in the proceedings; (b) voting or drawing remuneration.For all other purposes, the voiding judgment being suspended, he con-tinues as Member. Indeed, the very direction that he attend the Houseand sign in the Register as Member to avoid disqualification under Art.101 of the Constitution postulates that he is a Member and is not dis-qualified under s. 8A of the Act. For it the disqualification unders. 8A operates and he ceases to be a Member, there is no need to vetohis drawing remuneration, voting or participating in the proceedings. Itwould be a curious contradiction to say that a person is disqualified tobe chosen as or being a Member and yet be allowed to sign the Registeras Member. Can the Court, without stultifying itself and usurpingpower, permit a non-Member to sit in the House instead of or even iuthe visitor's gallery, unless it necessarily reads into the order of stay ofjudgment a suspension of the disqualification also ? There are a numberof other privileges for a Member of Parliament which are left uncouchedby this Court's prior stay orders. Moreover, the specific directionsuspending the judgment and order under appeal, read in its plenitude,also suspends the finding of corrupt practice. So much so, that the dis-qualification also shares the same fate. I have no doubt that thereasonable effect of a stay order is that there is a plenary eclipse of theHigh Court's judgment and order during the pendency of the appeal,subject to the few restraints clamped down on an appellant. Thoserestraints are the second limb of the stay order and are explicit enough.

26. The essential point to note is that by necessary implication thedisqualification imposed on every appellant also stands suspended in allcases of conditional stay. The stay is complete, but carved out of itare but three limitations. For all other purposes, the appellant, in allsuch cases, continues a Member. For instance, if he is prevented fromentering the Legislature, a breach of privilege arises. I have gone atlength into these ramifications to remove recondite doubts. The typicalstay restores to the appellant, during its operation, the full status of a

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 161

Member of a Legislature minus the right to participate in debates includ-ing voting and drawing of remuneration as a Legislator.

27. For these reasons I propose to direct, a stay, substantially onthe same lines as have been made in earlier similar cases, modified bythe compulsive necessities of this case.

28. What would be the legal impact of an order of this type on thePrime Ministership of the petitioner ? The question canvassed aboutthe office of the Prime Minister and its involvement in the present case-has exercised counsel on both sides and it is but proper to dissolve themists of possible misunderstandifig by an explicit statement. This appeal,it is plain, relates solely to the Lok Sabha Membership of the appellantand the subject matter of her office qua Prime Minister is not directlybefore this Court in this iitigation. Indeed, that office and its functionsare regulated carefully by a separate fasciculus of Articles in the Con-stitution. There is some link between Membership of one of the twoHouses of Parliament and Ministership (Art. 75) but once the stay orderis made, as has been indicated above, the disqualification regardingMembership is in suspended animation and does not operate. Likewise,the appellant's Membership of the Lok Sabha remains in force so longas the stay lasts. However there will be a limitation regarding thsappellant's participation in the proceedings of the Lok Sabha in her capa~city as Member thereof, but, independently of the Membership, a Ministerand, a fortiori, the Prime Minister, has the right to address both Housesof Parliament (without right to vote, though) and has other functions tofulfil (Arts. 74, 75, 18 and 88 are illustrative). In short, the restrictionsset out in the usual stay order cannot and will not detract from theappellant being entitled to exercise such rights as she has, includingaddressing Parliament and drawing salary, in her capacity as PrimeMinister. There will thus be no legal embargo on her holding the officeof Prime Minister. However, this legal sequitur of the situation arisingfrom the stay of the judgment and order of the High Court, includingthe suspension of the disqualification under s. 8 A, has nothing to dowith extra-legal considerations. Legality is within the Court's provinceto pronounce upon, but canons of political propriety and democratic dharmaare polemical issues on which judicial silence is the golden rule.

29. It is true that between an absolute stay as sought and the stayas granted there is practically little difference when the petitioner is aMinister. Moreover when the House is not in session, as now, even therestrictions set out in sub-para III of para 31 of this order hardly haveany operation. In this view, the dispute between the parties one askingfor an obsolute stay (as if it were a magic formula) and the other citingheaps of orders of "conditional stay for adoption (as if much differencewould be made in practical effect) appears to be shadow-boxing, aspointed out by me even during the arguments.

30. May be, brevity which is usual in this Court in orders of stayof this sort might well have sufficed here also but, the over all desirabilityto dispel possible ambiguity warrants a hopefully longer speaking order.

31. Let me sum up the terms of the operative order I hereby pas?:I. Subject to para III below, there will be a stay of the operation

of the judgment and order of the High Court under appeal.II. Consequentially, the disqualification imposed upon the appellant

as a statutory sequel under s. 8A of the Act and as forming partof the judgment and order impugned will also stand suspended.

162 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAJN [VOL. LVIl

That is to say. the petitioner will remain a Member of the LokSabha for all purposes except to the extent restricted by paraIII so long as the stay order lasts.

i l l . The appellant-petitioner, qua Lok Sabha Member, will be entiJedto sign the Register kept in the House for that purpose and attendthe Sessions of the Lok Sabha but she will neither participatein the proceedings in the Lok Sabha nor vote nor draw remune-ration /;; her capacity as Member of the Lok Sabha.

IV. Independently of the restrictions under para III on her Member-ship of the Lok. Sabha, her rights as Prime Minister or Minister,so long as she fills that office, to speak in and otherwise to takepart in the proceedings of either House of Parliament or a jointsitting of the Houses (without right to vote) and to dischargeother functions such as are laid down in Article;, 74, 75, 78. 83etc., or under any other law, and to draw her salary as primeMinister, shall not be affected or detracted from on account ofthe conditions contained in this stay order.

32. This order, by me sitting single as Vacation Judge, is beingdelivered with a sense of hurry, although after careful consideration ofarguments heard till last evening. Now the Parliament is not in sessionand the veto on the right to vote is currently academic. Situations maydevelop, circumstances may change and th is order itself, like any inter-locutory order, is provisional. If new events like the convening ofParliament take place or fresh considerations crop up warranting thereview of the restrictions in this stay order, the petitioner-appellant wilJbe at liberty to move a Division Bench of this Court again to modifythe restrictions or pray for an unconditional stay. Likewise, the respon-dent may also, if justifying considerations appear a new, move for varia-tion of the conditions in this stay order.

IN THE SUPREME COURT OF INDIA. SMT. INDIRA NEHRU GANDHI

VSHRI RAJ NARAIN

(A. N. RAY, C. J., H. R. KHANNA, K. K. MATHEW, M. H. BLG

AND Y. V. CHANDRACHUD, JJ.)

November 7, 1975

Constitution of India—Article 329/4(4) and (5) inserted by the Constitution{Thirty-ninth Amendment) Act 1975—Exclusion of all existing law:-; re-lating to' election petitions in their application to Prime Minister orSpeaker—Validity of—Whether violates basic scheme of the Constitution.

Constitution of India—Articles 79, 81, 85, 105, 122, 327 and 368—Com-position of Parliament—Some members under preventive detention andas such unable to attend and participate in the proceedings—Constitution(Thirty-ninth Amendment) Act 1975 and the Election Laws (Amendment)Act 1975 passed—Whether valid—Legality of preventive detention ofmembers—Whether can be questioned or raised in election petition.?.

Constitution of India—Article 31B and Ninth Schedule—Insertion of theRepresentation of People Act, 1951, the Representation of the People(Amendment) Act, 1974 and the Election Laws (Amendment) Act 1975in the Ninth Schedule—whether constitutionally valid.

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN 163

Representation of the- People Act, 1951—Election Laws (Amendment)Act, 1975—Retrospective operation affecting a concluded election-—Validity of—Whether can be challenged on grounds of unfairness orinequality.Representation of the People Act, 195!— S. 123(7) and 100(l)(b)—Obtaining or procuring assistance from a Government servant by acandidate—Acts of person before . he becomes a candidate—Whetheramounts to corrupt practice—Section 79(6)—When does a person become

' a candidate for election—Essentials of—Whether Metis rea or act us reusessential to constitute the offence arrangement made by the StateGovernment for rostrums and loud speakers in connection with theelection tour of the Prime Minister who is a candidate at election—Whether amounts 1a corrupt practice.Representation of the People Act 1951—Ss. 123(6), 77, 83(1) (/>)—Corruptpractice—-Incurring or authorising of expenditure in contravention of5. 77—Meaning of expenditure incurred or authorised by a politicalparty—-Whether the candidate is required to disavow or denounce inchexpenditure.Representation of the People Act 1951 —Sv. 123{3)—Use- of or appeal tosymbol of Cow and Calf—// appeal to —to religious Symbol—W lie theamounts to corrupt practice.Representation of the People Act 1951—5. 123(7)—Amendment by theElection Laws (Amendment) Act 1975—Amendment merely clarifying theexisting state of law and not changing the. law—Validity of S. 123(7) asit stood before amendment not challenged—Whether the challenge to thevalidity of the amendment permissible.Representation of the People Act 1951—Si. 83(1)(6) and 123—Pleadingsand evidence—Allegation of corrupt practice—Insufficient particulars ofcorrupt practice—Whether evidence can be looked into for particulars.Evidence Act 1872—5. 114—Non production of available evidence—Presumption of adverse inference—Whether absolute and mandatory.Constitution of India—Article 368—Power of Parliament to amend theConstitution—Whether supreme power.Constitution of India—Basic structure of the Constitution—Meaning of—Supremacy of Constitution, separation of powers and fundamental

l rights—Whether form part of the basic structure.Interpretation of statutes—Provision widely worded—Whether amplitudeof the provision can be curtailed in view of the facts of an individualcase to which it applies.

The appellant's election to the Lok Sabha from the Rai Bareli ParliamentaryConstituency in the General Election held in 1971 was challenged by the respondentbefore the High Court on the ground that the appellant committed various corruptpractices under Section 127 of the Act at the election including: the obtaining orprocuring of assistance of Y.K. a Gazetted Officer of the Government of India, andof a number of officers of the Government of U.P., the Armed Forces, etc. ; makingan appeal to the religious symbol of a 'Cow and Calf; procuring vehicles for thefree conveyance of voters; the incurring or authorising of expenditure in excess ofthe prescribed limit, etc.

The appellant was holding the office of Prime Minister of India at the time of theGeneral Election in 1971 as also after the election. The appellant had filed hernomination paper on 1-2-1971. Y.K. was a Gazetted Officer in the Government ofIndia holding the post of an officer on special duty in the Prime Minister's Secretariat.He submitted his resignation to the Government on 13-1-1971 which was acceptedorally on 14-1-1971 and the notification of his resignation in the Gazette was issuedon 25-1-1971. The appellant appointed Y.K. as her election agent and the signedform about Y.K.'s appointment as such election agent was submitted to the ReturningOfficer on 4-2-1971.

The High Court held inter alia that the appellant held herself out as a candidatefrom 29-12-1970 when she addressed a Press conference at New Delhi: and that afterthis date she committed two corrupt practices within the meaning of Section 123(7)of the Act (as it stood before the Election Laws (Amendment) Act 1975) namely:

(i) she obtained the assistance of Y.K., who it was held continued to hold theGazetted post of an Officer on Special Duty in the Prime Minister's Secretariatuntil 25-1-1971 when the written notification of his resignation was issued forbeing gazetted; and

164 SMT. INDIRA NEHRU GANDHI V. SHR[ RAJ NARAlN [VOL. LVII

(ii) she obtained the assistance of the Gazetted Officers of the Government ofU.P. for construction of rostrums and arrangements for supply of power foiloud speakers in the election meetings held on 1-2-1971 and 25-2-1971 in theappellant's constituency.

The High Court therefore set aside her election and under section 8 A of the Actdisqualified her for a period of six years from contesting an election to Parliament.The High Court however rejected the other allegations. Both the patties appealedto the Supreme Court.

During the pendency of the election petition before the High Court, by a-!Ordinance, (later replaced by the Representation of the People (Amendment) Act,1974) an Explanation was added to s. 77 of the Act to the effect that the expensesincurred by a political party or any person other than the candidate or his electionagent would not be deemed to be expenses incurred or authorised by the candidatein connection with his election. A challenge to the constitutionality of the Ordinanceand the Act by a separate writ filed by the respondent and pending in the High Courtwas by consent of parties allowed by the Supreme Court to be are :ed along withthe election appeal.

During the pendency of the appeals in the Supreme Court, Parliament passedthe Election Laws (Amendment) Act, 1975, which came into force on 6-31975 wherebythe following amendments were made in the Act of 1951:

(i) Section 8A of the Act was substituted by a new section which empoweredthe President instead of the Court to decide whether a person found guiltyof corrupt practice should be disqualified and if so for what period.

(ii) Section 77 was amended to exclude from its scope election expenses incurredbefore the date of his nomination as candidate: and to provide thai theexpenses incurred by Government servants in the discharge of their officialduties although related to arrangements made for or facilities provided toa candidate shall not be deemed expenditure in furtherance cf his ebctioa.

(iii) Section 79(b) was amended to redefine candidate as meaning a person whohas been or claims to have been nominated as a candidate at an election.

(iv) Section 123(3) was modified to provide that a symbol, allotted und.T theAct shall not be deemed to be a religious or national symbol.

(v) Section 123(7) was modified to provide that the arrangements made or faci-lities provided by a Government servant in the discharge or purporteddischarge of his official duty shall not be deemed to be assistance for thefurtherance of election prospects of a candidate thereby amounting iocorrupt practices.

(vi) Section 123(7) was further modified to provide inter alia that in case cfresignation from service of a Government servant the publication in theofficial Gazette shall be the conclusive proof of the resignation as well MSthe date mentioned therein as the time from which the re^sruation wouldtake effect.

These amendments were given retrospective effect and were also made applicableto elections in respect of which any appeal was pending before the Supreme Court.

Again, on August 10, 1975, during the pendency of the election appeal beforethe Supreme Court, the Constitution (Thirty-Ninth Amendment) Act, 1975 was passedwhich introduced Article 329A. Clause (4) of Article 329A in effect excluded allexisting laws relating to election petitions and other matters connected therewith mtheir application to a person holding the office of Prime Minister or Speaker.Clause (5) provided that any appeal relating to the election of such persons pendingin the Supreme Court should be disposed of in conformity with clause (4). TheConstitution (Thirty-Ninth Amendment) Act 1975, placed the Representation of thePeople Act 1951, and the Representation of the People (Amendment) Act 1974 zndthe Election Law (Amendment) Act, 1975 in the Ninth Schedule of the Constitution.

The respondent challenged before the Supreme Court the constitutional validityof the Constitution (Thirty-Ninth Amendment) Act 1975, the Election Laws (Amend-ment) Act 1975, and the retrospective operation of the amended provisions, etc. Itwas contended on behalf of the respondent that the Thirty-Ninth Amendment Actdestroyed or damaged the basic scheme and basic features of the Constitution suchas the democratic character of Government, the separation of powers, the Rule ofLaw, Judicial Review, the fundamental rights, etc.; that the constitution of the Housewhich passed the Thirty-Ninth Amendment Act and the Election Laws (Amendment)


Act 1975 was illegal inasmuch as a number of members of Parliament were underpreventive detention and thereby precluded from taking part in the proceedings ofParliament.

Allowing the appeal and dismissing the respondent's cross-appeal—HELD (i) By the Court: The Election Laws (Amendment) Act, 1975 is valid.(ii) Per Majority (KHANNA, MATHEW and CHANDRACHUD, JJ.)—Clauses (4) and (5)

of Article 329A as introduced by the Constitution (Thirty-Ninth Amendment) Act 1975were unconstitutional.

Per KHANNA J.—Clause (4) of Article 329A violates the principles of free andfair elections inasmuch as it extinguishes both the right and remedy to challenge thevalidity of certain elections. It also affects the basic scheme of the Constitution.

Per MATHEW J.—It is a basic feature of democracy as established by the Consti-tution that election disputes are resolved by an authority by the exercise of judicialpower by ascertaining the adjudicative facts and applying the relevant law for deter-mining the real representatives of the people. There cannot be a legislative validationof an election when there is a dispute between, the parties as regards adjudicativefacts.

Per CHANDRACHUD J.—Clauses (4) and (5) of Article 329A are an outright nega-tion of the right of equality conferred by Article 14, a right which more than anyother is a basic postulate of our Constitution.

Per RAY C. J.—Clause (4) of Article 329A offends the rule of Saw as it excludesthe application of existing laws without providing any other law or forum for ad-judication of disputes relating to the election of the specified persons.

Per BEG J.—Clause (4i of Article 329A was not Intended to oust the jurisdictionof the Court and did not stand in the way of the consideration of the Appeal onmerits.

(ii;) The constitutional validity of the Constitution (Thirty-Ninth Amendment)Act 1975 and the Election Laws (Amendment) Act, 1975 cannot be assailed on theground that some members of Parliament were prevented because of their detentionfrom attending and participating in the proceedings of the Houses of Parliament.Such objection is directly covered by the terms of Article 122 which debar the courtfrom examining the propriety of proceedings in Parliament.

Per RAY C. J. and CHANDRACHUD J.—The legality of detention orders cannot becanvassed collaterally in an election petition.

(iv) Legislative measures are not subject to the theory of a basic scheme andan ordinary law cannot be challenged for the reason that it goes against the conceptsof democracy. Justice, liberty etc.

Per RAY C. f.—The majority view in Keshavananda Bharati's case is that statutesinserted in the Ninth schedule and Article 31B are not open to challenge on the groundof either damage or destruction of basic features, basic structure etc. or on the groundof violation of fundamental rights.

(v) Per MATHEW J.—If the provisions of the Acts are general in their operationthere can be no challenge to them on the ground of discrimination or unfairnessmerely because of the retrospective effect.

(vi) Corrupt practices contemplated by Section 123(7) cannot be said to havebeen committed by any person before there is a candidate for an election. Underthe amended section 79(b) a person becomes a candidate on the date he files hisnomination paper and all alleged acts of corrupt practices before that date areirrelevant for the purposes of section 123(7).

Per BEG J.—Allegations of corrupt practices must be judged by the samestandards as a criminal charge and therefore 'mens rea' or a guilty mind as we!! asan "actus reus" or a wrongful act must concur to constitute the effencs.

Per BEG J.—The facilities automatically provided by the St.ite -o the PrimeMinister by virtue of his or her office are not covered by s. 123(7).

(vii) Per RAY C. J.—Expenditure incurred by a political party in connectionwith the election of the candidates is not in law a part of the election expense ofthe candidate. A candidate is not required to disavow or denounce such expendi-ture.

(viii) Per RAY C. J.—Khanna & Beg, JJ—A cow and calf symbol is not areligious symbol.

12-345 Elec. Com./ND/82

166 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAftA&J [VO£.>LVIi

(ix) Per BEG J.—If the amendment does not change the law but merely clarifiesthe existing law then there could, be no challenge to the validity of the amendmentif the validity of the law as it existed before is not challenged.

(x) Per BEG J.—No anjount of evidence could be looked into one a case notreally set up before the court by placing proper materials.

" (xl) Per BEG J.—The presumption to be made under section 114 of theEvidence Act is always optional and is not obligatory. Such presumption is ana offacts and depends upon the whole set of facts.

(xii) Per BEG J.—It is the Constitution and not the constituent oower whichis supreme.

(xiii) Per KHANNA J.—If a clause of a Constitution or a statutory provision iswidely worded, the width, of its ambit cannot be circumscribed by taking intoaccount the facts of an individual case to which it applies.

His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, 1973Suppl. S.C.R. 1.Taylor v. Beckham (44L Ed. 547).Truman H. Newberry v. United States of America (65L. Ed. 913).

David S. Barry v. United States of America Ex. Rel. Thomas W. Cunningham<73 L. Ed. 867).Charles W. Baker v. Joe C. Can (7L. Ed. 2d 663).Julian Bond v. James Stoppy Floyd (17JL. Ed. ed. 235).Adam Clayton Powell v. John W. Mc.Cormack (23L. Ed. 2d 491).Abeyesekera v. Jayabilake (1) 1932 A.C. 260.Ptare Dusadh and other v. The King Emperor, 1944 F.C.R. 61.Kanta Kathuria v. Manak Chand Surana (1970) 2 SCR 835.Basanta Chandra Bose v. The King Emperor 1944 FCR 295.Jayantilal Shodhan v. F. N. Rana and Ors. (1964) 5 SCR 294.Chandra Mohan v. State of Uttar Pradesh and Ors. (1967) 1 SCR 77.Udai Ram Sharma and others etc. v. Union of India and Ors. (1968) 3 SCR 41.Bradlaugh v. Gossett, (12 Q.B.D. 271). . . 'In Special Reference No. 1 od 1964 (1965) 1 SCR 413.In Wilkes case (19 State Tr., 981).K. Anandan Nambiar and another v. Chief Secretary Government of Madrasand others (1966) 2 SCR 406.Kanwar Lai Gupta v. Amarnath Chawla and others AIR 1975 SC 308.Hans Raj v. Pt. Hari Ram and Ors. 40 Election Law Reports 125.Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi and Ors. 42 Election LawReports 307. .Rananjaya Singh v. Baijnath Singh and Ors. (1955) 1 SCR 671.Ram Dayal v. Brijraj Singh andothers (1970) 1 SCR 530.Maghraj Patodia v. R. K. Birla and Ors. (1971) 2 SCR 118.A. K. Gopalan v. State of Madras 1950 SCR 88.

M. P. V, Sundararamier and Co. v. The State of Andhra Pradesh and another1958 SCR 1422.Jumuna Prasad Mukhariya and Ors. v. Lachhi Ram and Ors. (1955) 1 SCR 608.Youghal 1 O'M &H 295.Bodmin 5 O'M & H 230.In rtorwich (54 L. T. 627).Matajog Dobey v. H. C. Bhari (1975) 2 SCR 925.Gwalior Rayon Silh Mfg. (Wvg.) Co. Ltd., v. The Assistant Commissioner ofSales Tax and Ors: (1974) 4 SCR 98.Marshall Field & Co. V. John & M. Clark (143 U.S. 649).Oscar Leser v. / . Mercer Garnett (66L. Ed. 505).Staie of Orissa v. Bhupendra Kumar Bose (1962) 2 Supp. SCR 380.


Sliri Prithvi Cotton Mills Ltd. and Another v. Broach Borough Muricipalityand Ors. (1970) 1 SCR 388.Janavada Sabha Chhindwara etc. v. The Central Provinces Syndicate Ltd. andanother etc. (1970) 3 SCR 745.Municipal Corporation of the City of Ahmedabad etc. v. New Shoiock Spg.Wvg. Co. Ltd. etc. (1971) 1 SCR 288.Stale of Tamil Nadu and another v. M. Rayappa Gounder AIR 1971 SC 231.Don John Doughlas Liyange v. The Queen 1967 A.C. 259.Marbury v. Madison 1 Cr. 137, 163 (1803).United States v. Lee 106 U.S. 196, 220.Areyasckera v. Jayalilake 1932 AC 260.Harbhajan Singh v. Mohan Singh & Ors. (1974) 2 SCC 364.Anant Mills v. State of Gujarat (1975) 2 SCC 175.Union of India v. Messrs. parameswaran Match Works etc. AIR 1974 SC 2349.iia:is Raj v. Hari Ram and Ors. 40 ELR 125./. C. Golak Nath v. State of Punjab and another (1967) 2 SCR 762.National Security Co. v. U.S. 193 US 197 at 400-1 (1904).

;V. P. Ponnuswami v. Returning Officer, Namakkal Constituency and others1952 SCR 218.Durga Shankar Meh.a v. Thakur Raghuraj Singh and others (1955) 1 SCR 267.Barry v. United States Ex. Rel. Cunningham 73L. Ed. 867.Madhav Rao- Scindia v. Union of India A.I.R 1971 SC 530.Prentis v. Atlantic Coast Line Co. 211 US 210, at 226.United Engineering Workers Union v. Devnayagam (1968) AC 356.Linanage v. The Queen (1967) 1 A.C. 259 at 291.Abeyexekera v. Jaycttilake (1932) A.C. 260.Jaisinghuni v. f/n/o/i of J.'iii/tf (1967) 2 SCR 703.Basheshor Nath y. Commissioner of Income Tax (1959) 1 SCR 528.State c// £efif?3.? v. Anwar All Sarkar 1952 SCR 284.Edinburgh and Dalkiih Ry v. Wauehope (1882) 8 Cl. and F. 710 at 724.Ash.by v. W'W.'e (1703) 14 St. Tr. 695.Louisville Gas Co. v. Alabama Power Co. 240 US 30 at 32.Satya Dev BuJ;aliri v. Padam Dev and ethers 10 ELR 10.5 (S.C.).Mnkendra Kirnar v. Vidyavati and others 10 ELR 214 (S.C.).Z5r. F. .V. Pc:mar v. /j?;a Sing/i Fa/ and another AIR 1959 S.C. 244.Babubha- Valiabh-Lis Gandhi v. p « 0 o ffomi Morf; 36 ELR 108.Ha/i /IM;:/ ir^'V:-' v. 3. '/. Keikar 21 ELR 409.O/'! Prabhii Jur,: v. Ciunvn Das another AIR 1975 SC 1417.•~dwrrij M. L'd',vafJ:i v, l/.i ' teJ 5ta/e.y, (1S80) 26 Lawyers Edn. 3 i .^,7/ Kumar v 6'iifwi ,•;/ //.•«?:« AIR 1969 SC 180.Jia; Nc:aii: v. iJ ;»,';// /':J;.'3 A'c/i/-« Gandhi and another AIR 1S72 SC 1302.Kr's'Oij? ••••' v. Df. ia"ii>j,r-:;::nand and others 20 ELR 221./. ?. ?f.7,v:;.. v. iT. /?. rfiasyc/ 20 ELR 443.i-lofiz Mohd. Irrc'ilm v. Ekaion Tribunal Lucknow and Ors. 13 t£LR 262.Ram Phal v Brahsn 1'rakssh and Ors. 23 ELR 92.M'iKhsvGini Govndcr v. Kkader Sharif} and Ors. 4 ELR 283..V. Khader Sheriff v. Munr.uswa™ Gounder and Ors. (1955) 2 SCR 469.Kj-hhan Kant Mishri v. Banamali Babu 38 ELR 451..M0«7a* v. MrtHgfa P,'«iarf AIR 1958 All. 794.

Birjesh Mishra v. i?a/?j iV«?/i Sharma and Ors. 7 ELR 243.

Sheopat Singh v. iJam Pratep (1965) 1 SCR 175.Rahim Khan v. Khurshid Ahmad (1974) 2 SCC 660.


Bhatendra Singh v. Ram Sahai Pandey and others AIR 1972 MP 176.Shital Prasad Misra v. Nitiraj Singh Chaudhary M. P. Gazette, Dated 23-1-1971Part 1 P. 809 paras 18 to 23.

Sri Prasanna Das Damodar Das Parwar v. Indu Lai Kanhaiya Lai YajnikGujarat Gazette, dated 20-7-1972 Part 4C P. 1042 at pp. 1355 to 1362.Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi 36 ELR 189.

referred to

CIVIL APPEALS NO. 887 AND 909 OF 1975

A. K. Sen, J. N. Kaushal, D. P. Singh, J. B. Dadachanji, R. H. Dhebar, MadunGujadhur, S. C. Agarwal, Yogeshwar Prasad, H. K. L. Bhagat. Sudhir Bera,K. P. Bhandari and Mrs. Anjali K. Verma for the Appellant (in,i CA No. 887/75)and for respondent No. 1 (in CA No. 909/75).

Shanti Bhushan, J. P. Goe!, R. C. Dwivedi, R. C. Srivast-.va, l3ranab Chatterjec,S. S. Khanduja, E. C. Agarwala. C. K. Ratnaparkbi, M. C. Gupta. T. N. Parwal,U. N. R. Rao, C. K. Garg, B. Solomon, K. C. Dua, Raghunath Singh and SripalSingh for the appellant (in CA 909/75) and for respondent No. 1 (in CA No.887/75).

Niren De, Attorney General of India, Lai Narain Sinha, Solicitor General of Indiaand Dr. V. A. Saiyid Mohammad, R. N. Sachthey, P. P. Rao, Miss SumitraChakravarty and S. P. Nayar for the Attorney General of India.

RAY, C. J.—In Civil Appeal No. 887 of 1975 the appellant is IndiraNehru Gandhi and the respondent is Raj Narain. Civil Appeal No. 909 of1975 is the cross-objection of the respondent. On 14th July, 1975, it wasdirected that both the appeals would be heard together. The appealsarise out of the judgment of the High Court of Allahabad, dated 12thJune, 1975. The High Court held that the appellant held herself outas a candidate from 29th December, 1970 and was guilty of having com-mitted corrupt practice by having obtained the assistance of GazettedOfficers in furtherance of her election prospects. The High Court furtherfound the appellant guilty of corrupt practice committed under section123(7) of the Representation of the People Act, 1951 (hereinafter referredto as the 1951 Act) by having obtained the assistance of Yashpal Kapura Gazetted Officer for the furtherance of her election prospect;. TheHigh Court held the appellant fo be disqualified for a period oi sixyears from the date of the order as provided in section 8(a) of the 1951Act. The High Court awarded costs of the election petition io '.herespondent.

It should be stated here that this judgment disposes of both theappeals. Under directions of, this Court the original record of the HighCourt was called for. The appeal filed by the respondent with regardto Issues Nos. 2, 4, 6, 7 and 9 formed the subject-matter of cross-objec-tions in Civil Appeal No. 909 of 1975. The cross objections are the samewhich form grounds of appeal filed by the respondent in the High Courtat Allahabad, against an order of dismissal of Civil Misc. Writ No.3761 of 1975 filed in the High Court at Allahabad.

The Constitution (Thirty-ninth Amendment) Act, 1975 contains threeprincipal features. First, Article 71 has been substituted by a newArticle 71. The new Article 71 states that subject to the provisions ofthe Constitution Parliament may by law regulate any matter, relating toor connected with the election of a President or Vice-President includingthe grounds on which such election may be questioned.


The second feature is insertion of Article 329A in the Constitution.Clause 4 of Article 329A is challenged in the present appeals. There aresix clauses in Article 329A.

The first clause states that subject to the provisions of Chapter IIof Part V [except sub-clause (e) of clause (1) of Article 102Q no electionto either House of Parliament of a person who holds the office of PrimeMinister at the time o f such election or is appointed as Prime Ministerafter such election; and to the House of the People of a person who holdsthe office of Speaker of that House at the time of such election or whois chosen as the Speaker for that House after such election; shall becalled in question, except before such authority [not being any suchauthority as is referred to in clause (Jb) of Article 329i] or body and insuch manner as may be provided for, by or under any law made byParliament and any such law may provide for all other matters relatingto doubts and disputes in relation to such election including the groundson which such election may be questioned.

Under the second clause the validity of any such law as is referredto in clause (1) and the decision of any authority or body under suchlaw shall not be called in question in any court.

The third clause states that where any person is appointed as PrimeMinister or, as the case may be, chosen to the office of the Speaker ofthe House of the People, while an election petition referred to in Article329(6) in respect of his election (o either House of Parliament or, as thecase may be, to the House of the People is pending, such election peti-tion 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 theHouse of (he People, but such election may be called in question underany such law as is referred to in clause (1)-

The fourth clause which directly concerns the present appeals statesthat no law made by Parliament before the commencement of the Con-stitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates toelection petitions and matters connected therewith, shall apply or shall bedeemed ever to have applied to or in relation to the election of anysuch person as is reierred to in clause (1) to either House of Parliamentand such election shall not be deemed to be void or ever to have becomevoid on any ground on which such election could be declared to be voidunder any such law and notwithstanding any order made by any court,before such commencement, declaring such election to be void, suchelection shall continue to be valid in all respects and any such order andany finding on which such order is based shall be and shall be deemedalways to have been void and of no effect.

The fifth clause states that any appeal or cross-appeal against anysuch order of any court as is referred to in clause (4) pending imme-diately before the commencement of the Constitution (Thirty-nmthAmendment) Act, 1975, before the Supreme Court shall be disposed ofin conformity with the provisions of clause (4).

The sixth clause states that the provisions of this Article shall haveeffect notwithstanding anything contained in the Constitution.

The third feature in the Constitution (Thirty-ninth Amendment) Actis that in the Ninth Schedule to the Constitution after Entry 86 andbefore the Explanation several Entries No. 87 to 124 inclusive are inserted.

170 SMT. INDIRA NEHRU GANDHI v. SHR1 RAJ NARAIN [VOL. LVIf

The Representation of the People Act, 1951, the Representation of thePeople (Amendment) Act, 1974 and the Election Laws (Amendment) Act,1975 are mentioned in Entry 87,

The respondent contends that the Representation of the People(Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975referred to as the Amendment Acts, 1074 and 1975 do not enjoy con-stitutional immunity because these Acts destroy* or damage basic struc-ture or basic features.

In view of the challenge by the respondent to the constitutionalvalidity of the Amendment Acts, 1974 and 1975 notice was given to theAttorney General.

The appeals were to be heard on 11th August, 1975. In view ofthe Constitution (Thirty-ninth Amendment) Act, 1975 which came intoexistence on 10th August, 1975 the hearing was adjourned till 25th August,1975.

The constitutional validity of cause (4) of Article 329A falls forconsideration. Clause (4) of Article 329A is challenged on two grounds.First, it destroys or damages the basic features or basic structure of theConstitution. Reliance is placed in support of the contention on the majorityview of 7 learned Judges in His Holiness Kesavananda Bharati Sripadana-galavaru v. State of Kerala and another 1973 Supp. S. C. R. 1.

If should be slated r>prj that the hearing has proceeded on the assump-tion, that it is not necessary to challenge the majority view in Kesava-nanda Bharati's case (supra). The contentions of the respondent arethese: First, under A-ii.ie 353 paly genera! principles governing theorgans of the Stah= ?.nd the br.^ic principles cart be 'aid down. Anamendment of the Constitution doss not contemplate yny decision inrespect of individual cases. Clause (4) of Article 329A is said to beexercise of a purely judicial power which is not included in the consti-tuent power conferred by Article 368.

Second, the control over the result of the elections and on th; questionwhether the election of any person is valid or invalid is vested in thejudiciary under the provisions of Article 329 and Article 136. Thejurisdiction of judicial determination is taken away, and, therefore, theDemocratic character of the Constitution is destroyed.

Third, the Amendment destroys and abrogates the principle of equality.It is said that there is no rational basis for differentiation between personsholding high offices and other persons elected to Parliament.

Fourth, the rule of law is the basis for democracy and. judicialreview. The fourth clause makes the provisions of Part VI of the Repre-sentation of the People Act inapplicable to the election of the PrimeMinister and the Speaker.

Fifth, clause (4) destroys not only judicial review but also separa-tion of power. The order of the High Court declaring the election tobe void is declared valid. The cancellation of the judgment is denialof political justice which is the basic structure of the Constitution.

The second ground is that the constitution of the House whichpassed the Constitution (Thirty-ninth Amendment) Act is illegal. It issaid that a number of members of Parliament of the two Houses were

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAI NARAIN 171

detained by executive order after 26th June, 1975. Taes$ persons: werenot supplied any grounds of detention or given any opportunity of makinga representation against their detention. Unless the President convenesa session of the full Parliament by giving to all members thereof anopportunity to attend, the session and exercise their right of speech aridvote, the convening of the session will suffer from illegality and un* .constitutionality and cannot be regarded as a session of the two Housesof Parliament. The mere fact that a person may be deprived of bisright to move any court to secure his release from such illegal deteiiiionby means of a presidential order under Article 359 does not render thedetention itself either legal or constitutional. The important leaders ofthe House have been prevented from participatien. Holding of thesession and transacting business are unconstitutional.

Under the first ground these are the contentions. The ConstitutionAmendment affects the basic structure of institutional pattern adopted bythe Constitution. The basic feature of separation of powers with th©role of independence of judiciary is changed by. denying jurisdiction ofthis Court to test the validity of the election. The essential feature ofdemoncracy will be destroyed if power is conceded to Parliament todeclare the elections void according to law under which it has been heldto be valid. This is illustrated by saying that Parliament can by lawdeclare the election of persons against the predominant ruling party tobe void. If the majority party controls (he Legislature and the execu-tive, the Legislature could not have any say as to. whether the executivewas properly elected. Free and fair elections are part of democraticstructure and an election which has been held to be invalid for viola-tion of the, principles of free "and fair elections and by commission ofcorrupt practices is validated. The basic structure of equality is violated"by providing that those who hold office of Prime Minister and Speakerare above law although election laws were there. The persons who willhold the office of Prime Minister and Speaker have been free from thoselaws and they are not under rule of law and there is no judicial reviewwith regard to their elections.

The nature of the constituent power is legislative. The constituentpower cannot exercise judicial power. Exercise of judicial power or ofa purely executive power is not power of amendment of the Constitution.The Constitution may be amended to change constitutional provisionsbut the constituent power cannot enact that a person is declared to beelected. The consequence of change of law may be that the decisiongiven by a court under the law as it stood will not stand.

The respondent contends that judicial review is an essential featureof basic structure because of the doctrine of separation of powers forthese reasons: Judicial review is basic structure in the matter of elec-tion to ensure free, fair and pure election. In the American and theAustralian Constitutions the judicial power of the State is located in thejudiciary. There is no such provision in our Constitution. The Executive,the Legislature and the Judiciary are all treated under our Constitutionwith respective spheres. The jurisdiction of this Court and of High Courtsunder our Constitution is dealt with by Articles under the Heads of theUnion Judiciary and the State Judiciary. Under Article 136 any' Tribunalor Court is amenable to the jurisdiction of this Court. The corollarydrawn from this h that if uiider clause (4) of Article 329 A of the Thirty-ninth Amendment the power of judicial review is taken away it amountsto destruction of basic structure.

172 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVI

In England formerly Parliament used to hear election disputes. Iri1870 Parliament found that because of political factions it would be betterto leave the task of deciding controverted elections to Judges. Parliamentdelegated its power of deciding controverted elections to Courts. Underthe English Law the Courts hear and make a report to Parliament. InAmerica each House shall bs she judge of the elections, returns and qualifi-cations of its own Members. That is Article 1, Section 5 of the AmericanConstitution. In Australia any question of a disputed election to eitherHouse shall he determined by the House in which the question arises.Under the German Federal Republic Constitution the legislaturedecides whether a person has lost his seat. Against the decision of theBundestag an appeal shall lie to the Federal Constitutional Court.

The view of Story on the American Constitution is that the power tojudge elections, returns afid qualifications of the members of each Housecomposing the legislature is to be lodged in the legislature. Story says thaino other body can be so perpetually watchful to guard its own rights andprivileges from infringement (See Story page 585).

In Corpus Juris, Vol. 16 (1956) it is said that the judiciary cannotexercise powers which are io be found in the other two departments ofGovernment which are normally legislative or powers which are gen:;allyexecutive in their nature. All matters relating to or affecting elections arepolitical questions and, as such, are not questions for the judiciary. Allmatters relating to or affecting elections are, in the absence of controllingconstitutional or statutory provisions to the contrary, political questionsand, as such, are not questions for the judiciary. So, subject to expressconstitutional restrictions, all matters relating to the holding of electionsand determining their results, including contests are political questions(pp. 691, 692, 710).

In Corpus Juris, Vol. 29 (1965) it is stated that under constitutionalprovision as to conferring on the legislature the power to determine bylaw, before what authority, and in what manner the trial of contestedelections shall be conducteJ, the legislature is given broad power. Aconstitutional provision authorising the legislature To provide for the modeof contesting elections in all cases not otherwise specifically provided forin the Constitution itself confers on the legislature adequate authority toprovide for all elections contests and to determine where and by whatmeans election contests shall be conducted. The right to contest anelection is not a common law right. Elections belong to the politicalbranch of the Government, and, in the absence of the special constitutionalor statutory provisions, are beyond the control of the judicial power.(Sections 245, 246). A contested election case is a proceeding in which thepublic is interested, since it is for the public good. An election contest isnot merely a proceeding for the adjudication and settlement of the privaterights of rival claimants to an office. It is the public interest, not theparties' claims which is the paramount legislative concern (Section 247).

In America disputed elections are decided by the Legislature. In Taylorv. Beckham (44L. Ed. 547) the American Supreme Court held that a determi-nation of an election contest for the office of the Governor is a political ques-tion and is not justiciable. In Truman H. Newberry v. United States ofAmerica (65 L.Ed. »913) the American Supreme Court held that the mannerof elections can be controlled. In David S. Barry v. United States of

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN 173

America Ex. Rel. Thomas W. Cunninggham (73 L.Ed. 867) the decisionof the American Supreme Court in Charles W. Baker v. Joe C. Can (7L.Ed. 2d 663) was referred to in order to find out as to what aspects ofelections would be justiciable and not a political question. In Baker v. Carrthe delimitation of constituencies was held to be a justiciable issue. InJulian Bond v. James 'Sloppy' Floyd (17 L.Ed. 2d 235) the exclusion ofan elected representative because of his statement attacking the VietnamPolicy was held to be justiciable on the ground that it was not within thejurisdiction of the Legislature to find out whether a member was sincerein regard to his oath of the legislature. In Adam Clayton Powell v. JohnW. Me Cormack (23 L.Ed. 2d 491) the disqualification by the House ofa Congressman on the basis of qualification on the ground which was notin the Constitution was held to be justiciable. The Federal District Courthas jurisdiction over the subject-matter of controversies arising under theConstitution. The conferment of power on each House in America to bea judge of elections is an exclusive ground of power and constitutes theHouse to be the sole and ultimate Tribunal.

The American decisions show that if the House claims additional powerto disqualify a member on the ground other than those stated in theConstitution judicial review against disqualification would be available. InBoard's case (supra) disqualification was on an unconstitutional groundthat his statement on Vietnam policy was a matter of free speech andexpression. The court d:d not decide an election dispute but as a custo-dian of judicial power judged whe'her the House was acting within itspower.

Parliament itself can also hear election disputes. That was theEnglish practice until the Greaville Ac!, 1868 when Parliament conferredpower on courts. Before 1770, controverted elections were tried by thewhole Houss of Commons as party questions. The House found that iheexercise of its privilege could be submitted to a Tribunal constituted bylaw to secure impartiality in the administration of justice accordingto the laws of the land. In 1868, the jurisdiction of the Housein the trial of controverted elections was transferred by statuteto the courts of law. The present procedure is containedin the English Representation of the people Act, 1949. The trial isconfided to judges selected from the judiciary. Provision is made in eachcase for constituting a rota from whom these judges are selected. TheHouse was no cognizance of these proceedings until their determinationwhen the judges certify their determination, in writing, to the Speaker,which is final to all intends and purposes. Trial is not a proceeding ofthe House. The judges are to make a report in any case where chargehas been made in the petition of corrupt and illegal practice. Provisionsis also made for the trial of a special case. All certificates and reportsof the election court are entered in the Journals of the House. Undersection 124(5) of the English Representation of the People Act, 1949, jtis the duty of the House to make orders for carrying the determinationof the judges into execution.

Judicial review in many matters under statute may be excluded. Inmany cases special jurisdiction is created to deal with matters assigned tosuch authorities. A special forum is even created to hear! election disputes, Aright of appeal may be conferred against such decisions. If Parliamentacts as the forum for determination of election disputes it may be a ques-tion of parliamentary privilege and the courts may not entertain anyreview from such decisions. That is because the exercise of powers by

1 7 4 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

the Legislature ia determining disputed elections njay be called legMativapower. A distinction arises between what can be called the traditionaljudicial determination by courts and tribunals on the one hand and thepeculiar jurisdiction by the legislature in determining controverted elections;on the other.

The legal order is a system of general and individual norms con-necfed with each other according to the principle that law regulatates itsown creations. Each norms of this order is created according to theprovisions of another norms and ultimately according to the provisionsof 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 organof the legal community constituted by this order. Creation of law isapplication of law. The creation of a legal norm is normally an appli-cation of: the higher norm, regulating its creation. The application ofhigher norm is the creation of a lower norm determined by the highernorm. 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 bindingone or both parties to the conflicti. Legislation is creation of law.Taking it into account is application of law. The higher norm maydetermine the organ and the procedure by which a lower norm and the .contents of the lower norm are created. For a norm the creation ofwhich is not determined at all by another norm cannot belong to anotherlegal order. The individual creating a norm cannot be considered theorgan of the legal community, his norm-creating function cannot beimputed to the community, unless in performing the • function he appliesa norm of the legal order constituting the community. Every law-creating act must be a law appljng act. It must apply a norm precedingthe act in order to be an act of the legal order or the community con-stituted by it. When settling a dispute between two parties a courtapplies a general norm or statutory or customary law. Simultaneously,the court creates an individual norm providing that a definitesanction shall be executed against ,a definite individual. Theindividual norm is related to the general norm as the statute is relatedto the constitution. The judicial function is thus like legislation, bothcreation and application of law. The judicial function is ordinarilydetermined by the general norms both as to the procedure and as to thecontents of the norm to be created, whereas legislation is usually determinedby the constitution only in the former respect.

The general norm which attaches abstractly determined consequences,has to be applied to concrete cases in order fhat the sanction determinedin abstract may be ordered and executed in concrete. The two essentialelements of judicial functions are to apply a pre-existing general normin which a certain: consequence is attached to certain conditions. Theexistence of the concrete conditions is connection with the concrete con-sequence are what may be called individualization of the general andabstract norm to the individual norm of the judicial decision.

The contention is that the constituent power is an exercise in legis-lative process. The constituent power, it is said, can exercise legisla-tive as well as judicial and executive powers. It is said that if a legis-lation can validate a matter declared invalid by a judgment the consti-tuent power may equally do so. Special emphasis is laid on Article 102(t)(e)>of the Constitution' which is~. amended by the Constitution (Thirty-ninthAmendment) Act. Article lCGQJKe) speaks of disqualification by. certainlaws. Tile constitutional amendment seeks to amend Article 102 antf

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remove the disqualification in the case of the Prime Minister and theSpeaker. Reliance was placed on the decisions in Abeyesekera versusJayabilake (1) 1932 A. C. 260 and Piare Dusadh and others versus TheKing Emperor, 1944 F. C. R. 61 that an amendment is supportable toinvalidate a judgement.

Abeysekerd s case (supra) is an authority for the proposition that thelegal infirmity can be removed and active indemnity can be passed torelieve from penalties incurred.

In Piare Dusadh'-s case (supra) the Special Criminal Courts (Repeal)Ordinance, 1943 which conferred validity and fuli effectiveness on sen-tences passed by special courts which functioned under the SpecialCriminal Courts Ordinance, 1942 was challenged. It was argued in PiareDusadh's case (supra) that the 1943 Ordinance attempted to exercisejudical power. The Federal Court did not accept the contention on theground that in India the legislature has enacted laws providing that suitswhich had been dismissed on a particular view of the law must be restoredand retried. Our Federal Court said that: Parliament simply takes upcertain 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 suchacts. The sections do not constitute an exercise of the judicial power.The legislature had not attempted to decide the question of the guiltor innocence of any of the accused. That question had as a matter offact been decided by tribunals which were directed to follow a certainjudicial procedure. Our Federal Court held that once the decisions of thespecial courts were held void for want of jurisdiction the legislaturecreated those special courts and authorised them to try cases and passsentences. The legislature gave jurisdiction to the courts to pass 'hesentences. The Ordinance did not exercise any judicial power becausethe sentences in due course where subject to an appeal and review bythe regular courts of the land.

The power of the legislature to validate matters which have beenfound by judgments or orders of competent courts and Tribunals to beinvalid or illegal is a well-known pattern. The legislature validates actsand things done by which the basis of judgments or orders of competentcourts and tribunals is changed and the judgments and orders are madeineffective. All the sales tax validation cases, the election validation casesare illustrations of that proposition. The present appeals are not of thetype of providing indemnity against penalties or determining existing factsto be treated in accordance with change of law.

The effect of validation is to change the law so as to alter the basisof any judgment, which might have been given on the basis of old lawand thus make the judgment ineffective. A formal declaration that thejudgment rendered under the old Act is void, is not necessary. If thematter is pending in appeal, the appellate court has to give effect to thealtered law and reverse the judgment. The rendering of a judgment in-effective by changing its basis by legislative enactment is not an encroach-ment on judicial power but a legislation within the competence of the Legis-lature rendering the basis of the judgment nonest. If a competent court hasfound that a particular tax or levy has been imposed by a law which isvcid because the legislature passing the law was not competent to passthe law then the competent legislature has validated the tax or levy bya validation Act involving a retnactment of the invalid law. Wherethe competent legislature has passed a law which is contrary to any of

176 SMT. INDIRA NEHRU GANDHI V. SHRl' RAJ NARAIN [VOL. LVII

the Fundamental Rights in Part III of the Constitution and the law hasbeen declared void by a competent court the appropriate legislature haspassed a retrospective law validating the actions taken under the old invalidlaw by curing the defects in the old law so as to make the new lawconsistent with Part III of the Constitution.

Where invalid elections declared by reason of corrupt practices havebeen validated by changing the definition of corrupt practices in theRepresentation of She People Act, 1951 restrospectively the originaljudgment is rendered ineffective. [See Kamta Kathuria versus ManakChand Surana (1970) 2 S, C. R. 830].

Our Federal Court in Basanta Chandra Ghose versus The KingEmperor (1944 F. C. R. 295) dealt with the validity and effect of Ordi-nance no. 3 of 1944. One of the objects of that Ordinance was toenact a presumption in the Ordinance itself in favour of detention ordersto preclude their being questioned in courts of law and to take away orlimit the power of the High Court to make orders under section 491 ofthe Criminal Procedure Code. The third object of the Ordinance waschallenged on the ground that section 10(2) of the Ordinance which pro-vided that if at the commencement there is pending in any Court anyproceeding by which the validity of an order having effect by virtue ofsection 6 as if it had been made under this Ordinance is called in question,that proceeding is hereby discharged. Section 10(2) of the Ordinancewas challenged on the ground that this was in abrogation of judicialpower by legislative authority. It was said that the legislative authorityonly passed the law and the disposal of the particular case could remainthe function of the court. Section 10(2) of •the Ordinance was said notto leave it to the court to apply the rule of law to the decision of casesbut to discharge all pending proceedings. Our Federal Court noticedthe distinction between a legislative act and the judicial act, and said "adirection such a proceeding is discharged is clearly a judicial act and notan enactment of law". In Piare Dusadh's. case (supra) the laterOrdinance provided that the decisions of the earlier Tribunals which werenegatived by a decision of the Federal Court should be treated as deci-sions of duly constituted Tribunals. That was held not to constitute ajudicial power by the Ordinance making authority. Tr, BasaMa ChandraGhose's case (supra) the Federal Court held section 10(2} of the Ordi-nance to be a. direct disposal of cases by the legislature itself. BasaniaChandra Ghose's case (supra) was decided on the ground that the sectionin the Ordinance discharged the proceedings. There was nothing left tothe Court.

Counsel on behalf of the respondent contended that the Constituentpower could deal with amendments of the Constitution, but could notexercise constituent power in relation to validating an election.

Judicial Review is one of the distinctive features of the AmericanConstitutional Law. In America equal protection of the laws is basedon the concept of due process of law. These features are not in ourConstitution.

In Bond's case (supra) the House claimed additional power to dis-qualify 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 thatjudicial review against the disqualification decreed by the House wouldbe available if a member was excluded on racial ground or other uncon-stitutional grounds. The house claimed that the ground on which Bond


was disqualified was not an unconstitutional ground. The court heldthat there was no distinction between a disqualification decreed by the Houseon racial grounds and one alleged to violate the right of free speech.The court concluded that Bond was deprived of his constitutional rightsguaranteed by the First Amendment by the disqualification ofdecreed by the House. This was not a case of deciding anelection dispute by the House and the Court sitting on appeal on thedecision of the House. This is a case where a disqualification wasimposed on unconstitutional grounds, thereby affecting the fundamentalrights of Bond. This is not an authority for the proposition that thedecision of the House on an election dispute would be open to judicialreview.

The case of Powell v. Me Cormack (supra), is also one of disqualifi-cation by the House of a Congressman on the basis of qualification whichthe House added to those specified in the Constitution. In other words,the House purported to unseat a member by disqualifying him on aground not given in the Constitution. This was not a case of decidingan election dispute. Under the statute in question the Federal DistrictCourt had jurisdiction over all civil action were controversy arises underthe Constitution. This was a case entertained on the ground that exclu-sion of a member of the House was unconstitutional. This case is anauthority for the proposition that if a power is committed to a particularorgan, the court cannot adjudicate upon it. Where a power is exercisedby one organ, which is not committed to that particular organ of theState and such exercise of power is violative of a constitutional provi-sion the matter becomes cognizable by courts. The Court held (hat aquestion of unconstitutional exclusion of a member is not barred fromjudicial review as a political question.

Judicial review is not to be founded on any Article similar to the.American Constitution. In the Australian Constitution also the judicialpower is located in the Court. The doctrine of separation of powers iscarried into effect in countries like America, Australia. In our Consti-tution there is separation of powers in a broad sense. But the largerquestion is whether there is any doctrine of separation of powers whenit comes to exercise of constituent power. The doctrine of separationof powers as recognised in America is not applicable to our country.[See Delhi Laws Act, 1951 S.C.R. 747 at 965-66; Jayantilal Sodhan v.F. N. Rana (1964) 5 S.C.R. 294: Chandra Mohan v. State, of UttarPradesh and others (1967) 1 S.C.R. 77 at 87; and Udai Ram Sharma andothers etc. v. Union of India and others (1968) 3 S.C.R. 41 at 67].

The rigid separation of powers as under the American Constitutionor under the Australian Constitution does not apply to our country.Many powers which are strictly judicial have been excluded from thepurview of the courts. The whole subject of election has been left tocourts traditionally under the Common Law and election disputes andmatters are governed by the Legislature. The question of the determi-nation of election disputes has particularly been regarded as a specialprivilege of Parliament in England. It is a political question in theUnited States. Under our Constitution Parliament has inherited all theprivileges, powers and immunities of the British House of Commons. Inthe case of election disputes Parliament has defined the procedure by law.It can at any time change that procedure and take over itself the wholequestion. There is therefore, no question of any separation of powersbeing involved in matters concerning elections and election petitions.


When the constituent power exercises powers the constituent powercomprises legislative, executive -and judicial powers. All powers flow;from the constituent power through the Constitution to the various depart-ments or heads. In the hands of the constituent authority there is nodemarcation of powers. It is only when the constituent authoritydefines the authorities or demarcates the areas that separation of poweris discussed. The constituent power is independent of the doctrine ofseparation of powers. The constituent power is sovereign. It is thepower which creates the organs and distributes the powers.

The constituent power is sui generis. It is different from legisla-tive power. The position of unlimited law making power is the criterionof legal sovereignty. The constituent power is sovereign because the;Constitution flows from the constituent power.

In Article 329A an exercise of judicial power is the question fordetermination. In legislative processes there may be judicial process. Ifthe legislature has to fix the amount or lay down the principle forfixation of amount the question will arise as to whether this is exerciseof judicial power. The determination of the amount will involve judicialprocedure. When the Legislature determines the amount the fixation ofamount is purely by legislative process. But in doing so the Legislaturetakes into account factors relevant to individual properties.

Every organ of the State has to ascertain facts which make thefoundation of its own decision. The executive usually collects its materialsthrough its departments. The judiciary acts in a field where there aretwo or more parties before it and upon evidence placed before it pro-nounces its verdict according to principles of natural justice. TheLegislature is entitled to obtain information from any source. TheLegislature may call witnesses. The rule of audi altarem partem is notiapplicable in a legislative process. Legislation is usually general. Itmay sometimes be for special reasons in an individual case. There isno doubt that the constituent power is not the same as legislative power.The distinction between constituent power and legislative power is alwaysto be borne in mind because the constituent power is higher in norm.

Judicial review in election disputes is not a compulsion. Judicialreview of decisions in election disputes may be entrusted by law to aJudicial Tribunal. If it is to a Tribunal or to the High Court the judicialreview will be attracted either under the relevant law providing forappeal to this Court or Article 136 may be attracted. Under Article329(6) the contemplated law may vest the power to entertain electionpetitions in the House itself which may determine the dispute by aresolution after receiving a report from a special Committee. In suchcases judicial review may be eliminated without involving amendment ofthe Constitution. The Constitution permits by amendment exclusion ofjudicial review of a matter if it is necessary to give effect to the Direc-tive Principles of State Policy. A similar power may be available whensuch 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 principlesof equality are violated. It only means that the appropriate body makingthe law satisfied itself and determines conclusively that principles ofequality have not been violated. That body conclusively makes classifi-cation for the purpose of applying the principles of equality. It is saidthat in this class of cases the answer to the question of the validity of theclassification rests on factors to which the court has no access and the

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materials may be of highly confidential nature and the decision has tobe on a matter of political necessity. If judicial review is excluded thecourt is not in a position to conclude that principles of equality have beenviolated.

Equality of status as well as equality of opportunity is a fundamentalright in Articles 14 and 16 of the Gonstitution. It also means equalitybefore law and equal protection of the laws. Equality is spoken in thePreamble. There is liberty to Legislature to classify to establish equality.When Articles 31-A and 31-B eliminated judicial review the meaningwas not that the Legislature would go on discriminating. The task ofclassification can be left to the Legislature. It "is the very nature oflegislation that classification must be in public interest. The amendingbody has excluded judicial review in Articles 31-A, 31-B and 31-C.

Exclusion of the operation of the equality principle, from somefields is constitutionally possible,. Article 33 excluded judicial review inmatters relating to the Armed Forces. Article 262(2) excludes jurisdic-tion of courts in water disputes.

Decisions in election disputes may be made by the Legislature itselfor may be made by courts or tribunals on behalf of the Legislature ormay be made by courts and tribunals on their own exercising judicialfunctions. The concept of free and fair election is worked out by theRepresentation of the People Act. The Act provides a definition of"corrupt practice" for the guidance of the court. In making the lawthe Legislature acts on the concept of free and fair election. In anylegislation relating to the validity of elections the concept of free and fairelections is an important consideration. In the process of election theconcept of free and fair election is worked out by formulating the prin-ciples of franchise, and the free exercise of franchise. In cases of disputesas to election, the concept of free and fair election means that disputesare Jairly and justly decided. Electoral offences are statutory ones. Itis not possible to hold that the concept of free add fair election is abasic structure, as contended for by the respondent. Some people mayadvocate universal franchise. Some people may advocate proportionalrepresentation. Some people may advocate educational qualifications forvoters. Some people may advocate property qualifications for voters.Instances can be multiplied on divergence of views in regard to qualifi-cations for voters, qualifications of members, forms of corrupt practices.That is why there is law relating to and regulating elections.

Clause (4) in Article 329-A has done four things. First, it haswiped out not merely the judgment but also the election petition and thelaw relating thereto. Second, it has deprived the right to raise a disputeabout 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 adjudi-cate upon. Fourth, the constituent power of its own legislative judgmenthas validated the election.

At the outset it has to be noticed that constituent power is not thesame as ordinary law making power. On behalf of the appellant it wasrightly contended that if any amendment of Article 102(i)(e) of iheConstitution had to be made, it had to be made by amendment of theConstitution. The matter d»es not rest there.

If no law prior to the Constitution (Thirty-ninth Amendment) Actwill apply to election petitions or matters connected therewith the resultis that there is not only no forum for adjudication of election disputes

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but that there is also no election petition in the eye of law. The insur-mountable difficulty is in regard to the process and result of validatingthe electifon by clause (4). Two answers were given on behalf of theappellant. One was that the validation of the election is itself the law.The other was that the constituent power applied its own norms, to theelection petition. Both the answers are unacceptable. If the electionpetition itself did not "have any existence in law there was no petitionwhich could be looked into by the constituent power. If there was nopetition to look into it is difficult to comprehend as to what norms wereapplied to the election dispute. The dispute has to be seen. The disputehas to be adjudicated upon.

Clause (4) suffers from these infirmities, first the forum might bechanged but another forum has to be created. If the constituent powerbecame itself the forum to decide the disputes the constituent power byrepealing the law in relation to election petitions and matters connectedtherewith did not have any petition to seize upon to deal with the same.Secondly, any decision is to be made in accordance with law. Parliamenthas power to create law and apply the same. In the present case, theconstituent power did not have any law to apply to the case, because theprevious law did DO" apply and no other law was applied by clause (4).The validation of the election in the present case is, therefore, not byapplying any law and it, therefore offends Rule of Law.

It is true that no express mention is made incour Constitution ofvesting the judiciary the judicial power as is to be found in the AmericanConstitution. But a division of the three main functions of Government

- is recognised in our Constitution. Judicial power in the sense of thejudicial power of the State is vested in the judiciary. Similarly, the Exe-cutive and the Legislature are vested with powers irr their spheres. Judi-

; cial power has lain in the hands of the Judiciary prior to the Const'tu-: tion and also since the Constitution. It is not the irstenfion that the: powers of the Judiciary should be passed to or be shared by the Execu-'; tive or the Legislature or that the powers of the Legislature or the Execu-\. tives should pass to or be shared by the Judiciary.

f The constituent power is sovereign. Law making power is subjectj to the Constitution. Parliament may create forum to hear election dis-; putes. Parliament may itself hear election disputes. Whichever body will| hear election disputes will have to apply norms. Norms are legal stan-[' dards. There is no discrimination if classification on rational basis isI made for determination of disputes relating to persons holding the office| of Prime Minister or the Speaker. The changes effected by the Amend-|. ment Acts, 1974 and 1975 apply to all and there is no discrimination.! Retrospective legislation is not by itself discrimination. The changes in-} troduced to the 1951 Act apply to all.

\ Clause 4 of Article 329 A in the present case in validating the electionI 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.

; 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.i

Gause 5 in Article 329-A states that an appeal against any order ofany court referred to in clause 4 pending, before the commencement ofthe Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme


Court shall be disposed of in conformity with the provisions of clause 4.The appeal connot be disposed of in conformity with the provisions ofclause 4 inasmuch as the validation of the election cannot rest on clause 4.

In view of the conclusion that the appeal cannot be disposed of inconformity with clause 4, it is necessary to hear the appeals on othergrounds in accordance with the provisions of the 1951 Act and theAmendment Acts, 1974 and 1975.

The second contention of the respondent is that the sessioa of theLok Sabha and the Rajya Sabha is invalid for these reasons. If the Exe-cutive illegally and unconstitutionally detains any person the deten-tion affects the validity of the proceedings. A number of members ofParliament of the two Houses, namely, the Lok Sabha and the RajyaSabha were detained by executive orders after 26th June, 1975 and beforethe summoning of a session of the two Houses of Parliament. Parliamentcommenced the session on 21st July, 1975. None of the members ofParliament were either supplied any grounds of detention or given anyopportunity to make any representation against their detention. ThePresident who was the authority to summon a session of Parliamentissued the Presidential Order under1 Article 359 of the Constitution on27th June, 1975. The right of the detained members of Parliament tomove any court for the enforcement of their fundamental right underArticle 22 of the Constitution was taken away by the executive order ofthe President who became a party to the unconstitutional and illegaldetention of the members of Parliament by preventing them from securingtheir release.

The constitutional position of the two Houses of Parliament is gov-erned by the provisions of Articles 79 and 81 of the Constitution. Therespondent contends that unless the President convenes a session of the

' full Parliament by giving to all members thereof an opportunity to aftendthe session and exercise theif right! of speech and vote, the convening ofthe session will suffer from illegality and unconstitutionality and cannotbe regarded as a session of the two Houses of Parliament. Any businesstransacted in a session of such truncated House cannot, therefore, be re-garded in law as a session of a House.

The mere fact thai A person who is under unconstitutional and illegaldetention may be deprived of i i s right to move a court to secure hisrelease from such illegal detention by means of a Presidential Order underArticle 359 is said by the respondent not to render the detention of aperson either legal or constitutional, and, therefore, such a detenu mustbe provided an opportunity to participate in the proceedings of the House.It is emphasized by the respondent that when important leaders ofdifferent parties are unconstitutionally prevented from participating in thesession of the House, a session cannot be held for deliberations in whichdifferent members influence the views of others by their own participa-tion. If in the holding of a session and' in transacting business therein,the provisions of the Constitution are not complied with, this is said toamount to illegality or unconstitutionality and not a mere proceduralirregularity wiflhin the meaning of Article 122(1) of the Constitution.

The essence of the respondents contention is that the right of parti-cipation of some members of the House of Parliament in the proceed-ings of Parliament under Article 105 (3) of the Constitution has been in-terfered with. When a member is excluded from participating in the pro-ceedings of the House, that is a matter concerning Parliament and the

13—345 Elec. Com./ND/81

182 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAR4IN [VOL. LVII

grievance of exclusion is in regard to proceedings within the walls ofParliament. In regard to rights to be exercised within the walls of theHouse the House itself is the judge. (See May's Parliamentary Practice,18th Ed., pp. 82-83. 12 Q. B. D. 271 at 285-286).

In Bradlaugh v, Gossett, (12-Q.B.D. 271), Bradlaugh claimed to makeaffirmation instead of taking the oath. He was permitted to make theaffirmation "subject to any liability by statute", and took his seat. Uponan 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 orderof the House which eventually directed the Serjeant to exclude him fromthe House until he undertook to create no further disturbance. Bradlaughthen brought an action against the Serjeant in order to obtain a "declara-tion that the order of the House was beyond the power and jurisdictionof the House and void, and an order restraining the Serjeant at Armsfrom preventing Bradlaugh by force from entering the House". It washeld that the Court had no power to restrain the executive officer of theHouse from carrying out the order of the House. The reason is that theHouse is not subject to the control of the Courts in the administrationof the internal proceedings of the House.

If an outside agency illegally prevents a member's participation, the Househas the power to secure his presence. In 1543 Ferrers a member was arrested inLondon. The House, on hearing of his arrest, ordered the Serjeant to go to theCompter and demand his delivery. The Serjeant was resisted by the cityofficers, who were protected by the sheriffs. The Commons laid their casebefore the Lords. They ordered the Serjeant to repair to the sheriffs, andto require the delivery of Ferrers without any writ or warrant. The LordChancellor had offered them a writ of privilege but they refused it. Thesheriffs in the meantime had surrendered the prison. This practice of re-leasing Members by a writ of privilege continued but no writ was to be.obtained.

The present mode of releasing arrested members goes back to Shirleyscase, (1 Hatsell 157). In 1603 Shirley was imprisoned in the Fleet, inexecution before the meeting of Parliament. The Commons first tried tobring him into the House by habeas corpus, and then sent the Serjeantto demand his release. The warden refused to give up his prisoner. Atlength the warden delivered up the prisoner.

An Act 1 James 1, c. 13 was passed, which while it recognised theprivilege of freedom from arrest, the right of either House of Parliament toset a privileged person at liberty, and the right -to punish those who makeor procure arrests, enacted that after such time as the privilege of thatsession in which privilege is granted shall cease, parties may sue andexecute a new writ. In 1700 an Act was passed which while it maintain-ed the privilege of freedom from arrest with more distinctness than theAct 1 James 1, c. 13, made the goods of privileged persons, liable to dis-tress infinite and sequestration, between a dissolution or prorogation andthe next meeting of Parliament, and during adjournments for more thanfourteen days.

The composition of Parliament is not dependent on inability of amember to attend for whatsoever reason. The purpose of Article 85 isto give effect to the collective right of the House which represents the

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nation to be called as often as the situation demands, and in any casethe interval between two sessions must not exceed six months. Assuminga conflict were to arise between the privileges of a member under Article105 (3) and the functions of the House to assemble under Article 85 theprivilege of the member will not prevail. The detention of members ofParliament is by a statutory authority in the exercise of "his statutorypowers.

The suspension under Article 359 of the remedy for the enforcementof fundamental rights is dependent on a Proclamation of Emergency underArticle 352. Parliament has the power not to approve of the Proclama-tion, and, thereafter the emergency shall cease to operate. The contentionof the respondent means that Parliament cannot meet even so as to with-hold approval of the emergency and thus terminate the suspension of themembers' right of moving the court. The Constitution provides for pro-clamation of emergency, the suspension of the remedy under Article 359for enforcement of fundamental rights enabling even detention of mem-bers of Parliament when necessary. Article 85 is not suspended. The sixmonths rule is obligatory. It follows that the members' right under Article105 are not available under a detention in these circumstances. For thepurposes of Article 105(3) a conviction under penal laws or detention underemergency laws must be deemed to be valid till it is set aside.

When under Article 359 the President during the operation of aProclamation of Emergency by order declares that the right to movs anycourt for the enforcement of rights conferred by Part III shall remainsuspended and persons who are members of House of Parliament are indetention under orders made under the Maintenance of Internal SecurityAct, the detention cannot be challenged by collateral attack on the groundof deprivation of their participation in the Parliamentary proceedings.The challenge will be questioning the detention on the ground that thedetention is in violation of Articles 19, 21 and 22.

Article 85 provides that not more than six months shall intervenebetween the two Sessions of Parliament. Article 85 is not a provision re-garding the Constitution of Parliament but of holding of Sessions. Thepowers, privileges and immunities of Parliament and its members as pro-vided in Article 105 are that they shall be such as may be denned byParliament by law, and, until so defined, shall be those of the Houseof Commons of the Parliament of the United Kingdom.

In Special Reference no. 1 of 1964 [(1965) 1 S.C.R. 413] it washeld that the Court could entertain a petition under Article 226 on theground that the imposition of penalty by the Legislature on a personwho is not a member of the Legislature or issuing process against suchperson for its contempt committed outside the four walls of the House.

The scope of the parliamentary privilege of freedom from arrest hasbeen defined positively and negatively. The positive aspect of the privi-lege is expressed in the claim of the Commons to freedom from arrest inall civil actions or suits during the time of Parliament and during theperiod when a member was journeying or returning from Parliament. Theprivilege has been defined negatively in the claim of the Commons whichspecifically excepted treason, felony and breach or surety of the peace.

The privilege of freedom from arrest is limited to civil causes, andhas not been allowed to interfere with the administration of criminal

184 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARA.IN [VOL. Lvll

justice or emergency legislation. See May's Parliamentary Practice, 18thEd. at p. 100). In early times the distinction between "civil" and "cri-minal" was not clearly expressed. The development of the privilege hasshown a tendency to confine it more narrowly to cases of a civil charac-ter and to exclude not only every kind of criminal case, but also caseswhich, while not strictly criminal, partake more of a criminal than of acivil character. This development is in ronrnnri'ty wi'h th= pri^-iplelaid down by the Commons in a con'V t ,_w ^ h ' c J , in 1->41 :"Privilege of Parliament is granted in it auj of r i\ ce r" O m n a -wealth and is not to be used to the dab" i '1 C i n u i li

In Wilkcs case, (19 State Tr., 981) i - i 1 I . t iseson 29th November, 1763 that the pi vi " ol i in1 ' H tx-tcncl to the case of writing and publ<rlii i i ' iif f tobe allowed to abstract the ordinary coi" * Id - >! ! ndeffectual prosecution of so heinous anj d T i or s. "v mattime" the Coxninitxe of Privileges saicl ir ' [ ' i l u i t ' edas established generally that privilege is n ^ c 'a r 'ao j > " r* I r acieoffence."

These being the general declarations of the law of Parliament, theHouse will not allow even the sanctuary of its walls to protect a Mem-ber from the process of criminal law, although a service of a criminalprocess on a Member within the precincts of Parliament, whilst the Houseis sitting without obtaining the leave of the House, would be a breachof privilege.

The committal of a Member in England for high treason or anycriminal offence is brought before the Hou"1 by a 1e>1"a

Speaker by the committing Judge or magis ctevicted but released on bail pending an apto communicate with the Speaker does ncthe Speaker arises in the case of a pen: i •sentence of a court is elected as a Membeideteirion of Members under Regulation 1Regu'ations in England, the communicaticra letter from the Chief Secretary to the L^was read to the House bv the Speaker. TlRegulation 18-B of the Defence (General) P * ~ r n ^ * ithe Emergency Powers (Defence) Acts, IS" < 1 1 1 ' i nmittee of Privileges being directed to cr i d r -i iconstituted a breach of the privileges of th Hoi o fl P C t *=e ' " 1 ) ' t -cd thst there w?.s no breach of privilege in * J T tl c-1 c ~ i,ber departed from Northern Rhodesia fci " n ^ ! " ' ' laideclaring him to be a prohibited immigrai flJa c " n 1-> i 1 u wnsno prime, facie c-se of breach of privilege, ( .LC M?.. t P. . 1. . .e^..,, , TVx-tice 18th Ed. p. 103).

In K. Anandan Nambiar and Another v. Ch'ef Secretary, Govern-ment of Madras and Others. (20) (1966) 2 S.C.R.' 406 the petitionerswho wore members of Parliament and detained by orders passed by theState Government under Rule 30(1) (b) of the Defence of India Rules,1962 challenged the validity of the orders of detention on the ground thatRule 30(1) (b) was not. valid because "a legislator cannot be detainedso as to prevent him from exercising his constitutional rights as suchlegislator while the legislative chamber to which he belongs is in session".The State raised a preliminary objection that the petitions were incom-petent in view of the order issued by the President under Article 359(1)

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suspending the rights of any person to move any court for the enforce-ment of rights conferred by Articles 14, 21 and 22. This Court held that thevalidity of the Act, Rule or Order made under the Presidential Ordercould not be questioned on the ground that they contravene Articles 14,21 and 22.

The petitioners also contended in Nambiar's (20) case (supra) thatRule 30(l)(b) under which the orders of detention bad been passed wasinvalid on grounds other than those based on Articles 14, 19, 21 and 22.This Court held that if that plea was well-founded, the, last clause of (hePresidential Order was not satisfied, and, therefore, the bar created by itsuspending the citizens' fundamental rights under Articles 14, 21 and 22could not be pressed into service by the respondent.

Articles 79, 85, 86 100(1) and 105(3} were considered in Nambiar's(20) case (Supra) in relation to rights of Members of Parliament and itwas held that the totality of rights cannot claim the status of fundamentalrights and freedom of speech on which reliance was placed is a part ofthe privileges falling under Article 105. The reason is that freedom fromarrest under a detention order is not recognised as a privilege which canbe claimed by Members of House of Commons in England. This Courtthen posed the question that if a claim for freedom from arrest by adetention order could not be sustained under the privileges of theMembers of Parliament whether it could be sustained on the groundthat it is a constitutional right which could not be contravened. The state-ment in May's Parliamentary Practice 7f'h Ed. at p. 78 which is to befound in the 18th Ed. at p. 100 that the privilege of freedom from arrestis limited to civil causes, and has not been allowed to interfere with theadministration of criminal justice or emergency legislation was acceptedas the basis of two propositions laid down in Nambiar's (20) case (supra)First, Articles 79, 85, Jo 1G0 and 105 cannot be construed to confer anyright as such on individual Members or impose any obligation on them.It is not as if a Member of Parliament is bound to attend fhe session.or is under an obligation to be present in the House when the Presidentaddresses it. Ths context in which these Articles appear shows that thesubject-matter of these Article is not the individual rights of the Membersof Parliament, but they refer to the right of the President to issue a sum-mons for the ensuing session of Parliament or to address the House orHouses. Second, the freedom of speech to which Article !05 refers wouldbe available to a Member of Parliament when he attends the session of theParliament. Jf the order of detention validly prevent him from attendinga session or Parliament, no occasion arises for the exercise of the rightof freedom of speech and no complaint can be made that the said righthas been invaiidly invaded.

The second ground of challenge that there was no valid session of theHouse cannot be accepted for the reasons given above. It has also to bestated that it is not open to the respondent to challenge the orders of deten-tion collaterally. The principle is that what is directly forbidden cannot beindirectly achieved.

The High Court found first that the appellant has to be regarded asa candidate" from 29th December, 1970 as she held herself out on thatdate ss a candidate. The second finding is that the appellant obtainedand procured the assistance of Yashpal Kapur for the furtherance of herelection prospects when Yashpal Kapur was serving as a Gazetted Officerwithin the Government of India. The High Court found that Yashpal

186 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN [VOL. LVH

Kapurs resignation from his service though submitted on 13th January,1971 did not become effective until 25th January, 1971 when it was noti-fied. The further finding by the High Court is that Yashpal Kapur underthe instructions of the appellant delivered election speech on 7th January,1971 at Munshi Ganj and another speech at Kalan on 19th January, 1971.The third finding by the High Court is that the appellant and her elec-tion agent Yashpal Kapur procured and obtained he assistance ...f ;heofficers of the Slate Government, particularly, the District Magistrate, theSuperintendent of Police, the Executive Engineer, P. W. D. and the En-gineer to Hydel Department for the construction of rostrums and arrange-ment for supply of power for loudspeakers at meetings addressed by theappellant on 1st February, 1971 and 25th February, 1971 and further thatthe said assistance was for furtherance of the prospects of election of theappellant. The High Court found the appellant guilty of corrupt practiceunder section 123(7) of the 1951 Act. t h e High Court declared the elec-tion of the appellant to be void. The High Court also held the appellantto be disqualified for a period of six years from the date of the order.

The definition of "Candidate" in section 79 (b) of the 1951 Act untilthe amendment thereof by the Election Laws (Amendment) Act, 1975was as follows •.

"Candidate means a person who has been or claims to have beenduly nominated as a candidate at any election and any such personshall be deemed to have been a candidate as from the time when,with the election in prospect, he began to hold himself out as aprospective candidate."

This definition has now been substituted by section 7 of the Amend-ment Act, 1975, as follows :

"Candidate" means a person who has been or claims to have beenduly nominated as a candidate at any election."

Section 10 of the Amendment Act, 1975 further cnacied that theamendments shall have retrospective operation so as to apply to and inrelation to any election held before the commencement of the Amend-ment Act, 1975 on 6th August, 1975 to either House of Parliament orto 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 anyelection petition under section 98 or section 99 of the 195! Act is pend-ing before the Supreme Court immediately before such commencement.

Section 9 of the Amendment Act, 1975 has substituted clause (a) insection 171-A of the Indian Penal Code and a "candidate" means forthe purpose of section 171-A of the Indian Penal Code a person who hasbeen nominated as a candidate at any election. Previously the defini-tion of "candidate" in section 171-A of the Tndian Penal Code wasthe same as in section 79 (b) of the 1951 Act prior to the amendmentthereof by the Amendment Act, 1975. In section 171-A of the IndianPenal Code there was a proviso to the effect that candidate would .meana person who holds himself out as a prospective candidate provided heis subsequently nominated as a candidafe.

Relying on the provisions introduced by the Amendment Ac', 1975,it is contended on behalf of the appellant that she will be regarded asa candidate only from 1st February, 1971, namely, the date when shehas been duly nominated as a candidate at her election, and, therefore,

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 18?

the finding of the High Court cannot be sustained. It is also contendedby the appellant that the finding of the High Court that Yashpal Kapur,delivered'election speeches on 7th January, 1971 and 19th January, 1971under instructions of the appellant cannot be supported because the appel-lant was not a candidate either on 7th January, 1971 or on 19th January,1971.

The second finding by the High Court with regard to the resigntionof Yashpal Kapur, not to be effective until 25th January, 1971 is con-tended to be displaced by legislative change by the Amendment Act,1975. Section 8 ib) of the Amendment Act, 1975 has introduced Explana-tion (3) at the end of section 123 (7) of the 1951, Act. This Amend-ment has retrospective operation.

The Explanation is as follows:

"(3) For the purposes of clause (7), notwithstanding anything con-tained in any other law, tb<e publication in the Official Gazetteof the appointment, resignation, termination of service, dismissal orremoval from service of a person in the service of the CentralGovernment (including a person serving in connection with theadministration of a Union territory) or of a State Government shallbe conclusive proof—

0) of such appointment, resignation, termination of service,dismissal or removal from service, as the case may be, and

{if) where the date of taking effect of such appointment resigna-tion, termination of service, dismissal or removal from service,as the case may be, is stated in such publication, also of thefact that such person was appointed with effect from the saiddate, or in the case of resignation, termination of service,dismissal or removal from service, such person ceased to be insuch service with effect from the said date."

The effect of Explanation (3) at the end of section 123 (7) of the1951 Act, incorporated by the notification dated 25th January, 1971. inthe Gazette, dated 6th February, 1971 makes the fact of the resignationof Yashpal Kapur, from his service fully effective from !4ih January,1971. It is, therefore, confended that from 14th January, 1971 YashpalKapur was not a Government servant.

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 orprocuring of assistance of the categories of Government servants men-tioned therein by the candidate or his election agent or by any otherperson with the consent of the candidate or his election agent. Section100 (1) {b) of the 1951 Act enacts that if the High Court is of opinionthat any corrunt practice has been committed by a returned candidateor his election agent or by any other person with the consent of a returnedcandidate or his election, agent, the High Court shall declare the elec-tion of the resumed candidate to be void. A relumed candidate isdefined in section 79 (/) of the 1951 Act to mean a candidate whose namehas been published under section 67 of the 1951 Act as duly elected. Areturned candidate in order to be guilty of a corrupt practice within themeaning of sec'ion 123(7) of the 1951 Act, must be guilty of any of theacts mentioned in the different sub-sections of section 123 as a candidate.The appellant contends that the appellant was not a candidate on 7th

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I 8 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARA.IN [VOL. LVII

January, 1971 or 19th January, 1971 and there could not be any pro-curing or obtaining of any assistance by the appellant as a candidate orby anybody else with the consent of the appellant. AH the sub-sectionsof section 123 of the 1951 Act refer to the acts of a candidate or hiselection agent or any other .person with the consent of the candidate orhis e'cction agent. The present definition of "candidate" which hasretrospective effect is contended to exclude completely acts by candidateprior to the date he is nominated as a candidate.

The third finding by the High Court Ybi f th P " Ml < A herelection agent Yashpal Kapur procured and ob ' i u i d tl-* <orsi n t " ofofficers'of the State Government, particularly, the D< tnc H"<v ! " theSuperintendent of Police, the Executive Engi. eei, P W n <, ;i ^ " "~eerto Hydci Department for construction of i c c t i um and m r " tit for

'-o—er fcr loudspeakers and for thei- a s r a*^f 'Oi uufierance" " o i he election of the apo jur i > l i 'c

pi -\ si n" contained in secV > ' " i" c ' ' ' <_t"• d fjovision obtaining or p r c i n I P b "• 1 J ' u 'KC

s s ' a r a for the furtherance of h l^s- i^ ^ ii"3 * ' itef ed C q i r a i s corrupt practice T V Am- KIP a ' i ( c 75, thereof h f added a proviso to sec to r 121 7 ol (1 - 1051proviso is as follows :

"Provided that where any person, in the service of th C c \ s i m ntand belonging to any of the classes aforesaid, i-i th> d s^1 r<~ orpurported discharge of his official duty, makes. n\ a i "" •v ntsor provides any facilities or does any other ac u (v to,or in relation to any candidate or his agent o r 1 ' macting with the consent of the candidate or hi nt,(whwher by reason of the office held by the orany other reason) such arrangements, facilities '< ' igshall not be deemed to be assistance fcr the fi . i?n • > heprospects of that candidate's election."

The proviso aforesaid shows that where persons in the service ofthe Government in the discharge of official duty make any arrangementor 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 forfurtherance of the prospect of the candidate's election. Therci-re. theservice rendered by Government servants for construction of rostrumsand arrangements for supply of power for loudspeakers according to thecontention of the appellant could not be considered as ass'-sfancs f-'r thefurtherance of the prospects of the election of the appellant.

The contentions of the appellant can succeed if the Amendment Actsof 1974 and 1975 are valid. The respondent has challenged the cons-titutional validity of these Acts. Therefore, that question has to beexamined before the appellant's contentions can be answered.

The respondent in cross-appeal challaoged the findings cf the HighCourt on issue no. 9 and contended that the High Ccv.rt shou'.d haveheld that the election expenses of the appellant exceeded the lim»t. Therespondent also challenged the finding of the High Court with regardto issue no. 6 and contended that the High Court should have held thatthe symbol of cow and calf was a religious symbol and the er?o.'ilantcommitted corrunt practice as defined in section 123 (3) of the 1051 Act.The respondent did not press issues no. 4 and 5 which related to distribu-tion of quilts, blankets, dhoties and liquor. The respondent also

UL.R,] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 189

abandoned issue no. 7 which related to voters being conveyed to the pol-ling stations free of charge on vehicles hired and procured by YashpalKapur.

The issue pressed by the respondent was that the appellant and herelection agent Yashpal Kapur. incurred or authorised expenditure inexcess of the amount prescribed by section 77 of the 1951 Act read withRule 90. The respondent alleged that the election expenses of the appel-lant, inter alia, were Rs. 1,28,700 on account of hiring charges of vehicles.Rs. 43,230 on account of cost of petrol and dicsel: Rs. 9,900 on accountof payments made to the drivers of the vehicles. The respondent furtheralleged 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 Courtshould be reversed.

The Hish Court found that the election expenses furnished by theappellant were Rs. 12,892.97. The Hiah Court " added another sura ofRs. IS 183.50. The three Hems which were added by She High Courtwere cost of erection cl roi risms amounting to Rs. 16,000, cost incurredin installation of loudspeakers amounting to Rs. 1,951 and cost for pro-viding car transport to respondent no. ] amounting to Rs. 232.50. Theto'al election expenses found by the High Court "came to Rs. 31,976.47which was below the prescribed limit of Rs. 35,000.

With regard to hiring charges of vehicles the High Court found thatthe respondent did not examine any wi'ness to indicate as to whether thevehicles were used only for party propaganda or they were used in con-nection with the ejection of the appellant The High Court further foundthat -h; documents which were relied on by the respondent did notestablish that vehicles had been engaged or used in connection with theelection work of the appcibnt.

The respondent repeated the following contentions which had beenadvanced before the High Court. Dal Bahadur Singh, President, Dis-trict Congress Committee wrote a letter to the District Election Officerintimating that 23 vehicles had been engaged by the District CongressCommittee for election work in Rae Bareli. Amethi and Ram Sanehi Ghatconstituencies, and, therefore, the vehicles should be derequisitioned. DalBahadur Singh, thereafter -wrote a note to Yashpal Kapur, and requestedthat the letter be sent to the District Election Officer to that effect.Yashpal Kapur, wrote a letter to the District E'ec-ion Officer and repeatedthe prayer contained in Dal Bahadur Singh's letter. It was, therefore,contended that because Yashpal Kapur wss the election agent of theapcdlant and he moved for the derequisition of the vehicles it shouldbe inferred that the vehicles were engaged for the election of the appel-lant. Yashpal Kapur said that the vehicles were used in the threeParliamentary constituencies. The High Court rightly held thai theevidence did not establish that the vehicles had been used for the elec-tion work of the appellant. The High Court also correctly found thatthere was no evidence to show that Yashpal Kapur made any propagandafrom the vehicles in any manner for the purpose of the election.

With regard to the expenses for the election of rostrums the respon-dent contended that the appellant's election expenses should includeRs. 1,32,000 as the costs for erection of rostrums for the meetings on 1stFebruary, 1971 and the meeting on 25th February, 1971. The High

190 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAiN [VOL. LVII

Court held that Rs. 16,000 could only be added to the election expanses'of the appellant consisting of Rs. 6,400 for four rostrums and Rs. 9,600for six rostrums.

The amount of Rs. 16.000 which was added by the High Court onaccount of cost of erection of rostrums cannot be included in the t'.ec-tion expenses of the appellant by reason of amendment to section 77of the 1951 Act by the Amendment Act, 1975, Explanation 3 has beenadded as follows:

"For the removal of doubt, it is hereby declared that any expenditure,incurred in respect of any arrangements made, facilities pro-vided or any other act or thing done by any person in the servicsof the Government and belonging to any of the classes mentionedin clause (7) of section 123 in the discharge or purported dis-charge of his official duty as mentioned in the proviso to thatclause shall not be deemed to be expenditure in connectionwith the election incurred or authorised by a candida'e or byhis election agent for the purposes of this sub-section."

By the Amendment Act, 1975 a proviso has been added to section123 (7) of the 1951 Act to the effect that arrangements made or facilities

provided or any act done by a Government servant belonging to theclass mentioned there in the discharge of official duty shall not be deemedto be assistance for furtherance of the prospects of that candidate'selection. All these amendments have retrospective operation. Therefore,the cost of rostrums cannot be added to the election expenses of theappellant. Services rendered by Government servants for the election ofrostrums and for supply of power for loudspeakers cannot be deemed tobe assistance for the furtherance of the prospects of that candidate'selection.

The respondent contended that Exhibit 118 which was the Bankaccount of the District Congress Committee showed on the one hand thatthere was deposit of Rs. 69,930 on 4th March, 1.971 and on the otherthere 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 shouldbe added to the election expenses of the anpdiant. When it was pu; toYashpal Kapur that the sums of Rs. 40,000 and. Rs. 25,000 were with-drawn by Dal Bahadur Singh, Yashpal Kapur said that he was not awareof it. There is no pleading in the election petition that the appellantauthorised incurring expenditure by a political party. There is no plead-ing that any amount has been paid by the political party. There is nocomplaint in the petition about the sum of Rs, 65,000 or the sum ofRs. 69,930. Yashpal Kapur denied knowledge of Rs. 70.000. The appeal-lant was not asked a single question. There is no evidence to ider.tifyany of these payments with the election of the appellant.

It is appropriate at this stage to refer to the amendment which wasintroduced by the Amendment Act, 1974. The aopellam relies on theprovision to show that expenses incurred or authorised by a noliiicalparty cannot be included in election expenses, Explanation 1 w-^ch wasinserted at the end of section 77 of the 1951 Act by Amendir: Q: Act,1974 is that any expenditure incurred or authorised in connection withthe election of a candidate by a political party or by any ofher associa-tion or body of persons or by an individual other than the candidate orhis election agent shall not be deemed to be and shall not ever bedeemed to have been expenditure in connection with the election incurredor authorised by the candidate or by his election agent.


A proviso was also added to the aforesaid Explanation I by theAmendment Act, 1974. The proviso stated that nothing contained in theExplanation shall affect (a) any judgement, order or decision of the SupremeCourt whereby the election cf a candidate to the House of trie Peoplesor to the Legislative Assembly of a State has been declared void or setaside before the commencement of the Representation of the Peoples (Amend-ment) Ordinance, 1974; (b) any judgment, order or decision of a HighCourt whereby the election of any such candidate has b^en declared voidor set aside before the commencement of the said Ordinance if no appealhas been preferred to the Supreme Court against such judgment, order ordecision of the High Court before such commencement and the periodof limitation for filing such appeal has expired before such commencement.

Explanation 2 which was added to section 77 of the 1951 Act by theAmendment Act, 1974 is as follows :

"For the purposes of Explanation I "political party" shall have thesame meaning as in the Election Symbols (Reservation and Allot-ment) Order, 1968, as for the time being in force."

Counsel for the respondent relied on the recent decision of this Courtin Kanwar Lai Gupta V. Amarnath Chawla and others, (A.I.R. 1975, S.C.308) in support of the proposition that there has been no change in lawand if expenses incurred by a political party can be identified with theelection of a candidate then that expenditure is to be added to the electionexpenses of a candidate as being authorised by him. There are no find-ings by the High Court in the present appeals that any expenses by apolitical party were authorised by the appellant. There is also no findingin the present appeals that any expenses incurred by a political party canbe identified with the election of the appellant. The changes in law affect-ed by the Amendment Acts, 1974 and 1975 totally repeal fhe submissionson behalf of the respondent. Expenses incurred or authorised in connec-tion with the election of a candidate by a political party shall not bedeemed to be and shall not ever be deemed to have been expenditure inconnection with the election incurred or authorised by the candidate. Fur-ther more, the ruling in Kanwar Lai Gupta's case (supra) is no longer goodlaw because of the legislative changes.

Counsel for the respondent contended that the judgment of the HighCourt should be reversed with regard to election expenses of the appellanton three counts. First, Exhibit 118 shows that the sum of Rs, 65.000which was drawn by the Congress Committee should have been held bythe High Court on a reasonable inference to have been spent by the Dis-trict Congress Committee as having been authorised by the election agentof the appellant. Second, the High Court has not taken into account ex-penses of the election agent at 12 meetings other than the meetings address-ed by the appellant and has also not taken into account the telephoneexpenses of the election ssent. The telephone expenses amounted toRs. 836.85 between 11th January, 1971 and 10th February. 1971 and afurther sum of Rs. 2,514'for the period 11th February, 1971 lo 15th March,1071. Third, it is said that there were 5,000 polling booths and if 20workers were required per booth then 10,000 workers won't! be requiredand the only inference is that an amount in excess was spent icr workerswith the authority of the election agent.

In Issue no. 9 there was no amount alleged with regard to telephonebills or election meetings under the heading of alleged election expenses.There was no allegation to that effect in the petition. With regard to ex-

192 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL LVII

penses for the alleged 12 meetings addressed by the election agent theevidence of Yashpal Kapur is that he addressed about a dozen meetingsand he did not include in the election return the expenses incurred for in-stallation of loudspeakers because the expenditure was not incurred by him.He also said that he did not include in (he election return the expensesincurred over the construction of platforms because the meetingswere arranged by the District Congress Committee. No allegationswere made in the petition with regard to any alleged sum of money onaccount of election meetings where the election agent spoke. The HighCourt rightly said that the telephone expenses and expenses for meetingscould not be taken into consideration because no suggestion of the casewas made until the stage of arguments.

The respondent's submission is that the appellant was the Prime Mini-ster at the time of the election, and, therefore, there was a big campaignand the expenses were enormous. That will mean little. Expenses incurredor authorised by a political party are under the Amendment Act, 1974 notto be deemed to be expenditure in connection with the election incurredor authorised by the candidate or by his election agent for the purposesof section 77 of the 1951 Act. The part played by a political party inconnection with candidates of the party at the election particularly in re-lation to expenditure incurred by the political party with regard to candi-dates of the party has been the subject of some decisions of this Court.This Court has observed that expenditure must be by the candidate him-self and any expenditure in his interest by others (not his agent withinthe 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 thecandidate, the amount spent by the Congress Committee could not be takento be included in the expenditure of the candidate's election expenses. SeeHans Raj v. Pt. Hari Ram and others (40 Election Law Reports 125).

Expenses incurred by a political party in support of its candidateshave been held by this Court not to call within the mischief of section 123(6)of the 1951 Act. See Shah Jayantilal Ambalal v. Kasturilal NagindasPoshi and others (42 Election Law Reports 307). In Rananjaye Singh v.Baijnath Singh and others [(1955) 1 S.C.R. 671], this Court pointed outthat expenses must be incurred or authorised by the candidate or his agent.In that case the Manager, the Assistant Manager, 20 Ziladars and theirpeons were alleged to have worked for the election of the appellant. ThisCourt held that the employment of extra persons and the incurring orauthorising of extra expenditure was not by the candidate or his electionagent. The extra men employed and paid were in the employment of thefather of the appellant. This Court said that the position in law could notbe at all different if the father had given those employees a holiday onfull pay and they voluntarily worked in connection with the election ofthe appellant. Persons who volunteer to work cannot be said to be em-ployed or paid by the candidate or by his election agent.

In Ram Dayal v. Brijraj Singh and others [(1970) 1 S.C.R. 530], theappellant challenged the election of the respondent on the ground that theMaharaja and the Rajmata of Gwalior had helped the respondent's elec-tion in a number of ways and acted as his agents and the respondent's in-curred considerable expenditure which exceeded the limit. This court foundthat assuming the expenditure was incurred by the Maharaja and the Raj-


mata of Gwalior for the purpose of canvassing votes, in the absence ofany evidence to show that the Maharaja and the Rajmata acted as electionagents or that the expenditure was authorised by the respondent, it wasnot liable to be included in the election expenses.

On behalf of the respondent it was said relying on the decision ofthis Court in Kanwar Lai Gupta's case {supra) that if the candidate takesadvantage of expenditure incurred by the political party in connectionwith the election of the candidate or participates in the programme ofactivity or fails to disavow the expenditure the candidate cannot escape therigour of the ceiling by saying that he has not incurred the expenditurebut his political party has done so. Expenditure incurred by a politicalparty in connection with the election of the candidates of the party is nota part of the election expenses of the candidate. Similarly, participationin the programme of activity organised by a political party will not fallwithin the election expenses of the candidate of the party. A candidateis not required to disavow or denounce the expenditure incurred or autho-rised by the political party because the expenditure is neither incurred norauthorised by the candidate. One can disavow what would be ascribedto be incurred or authorised by one. In the case of expenses of a poli-tical party there is no question of disavowing expenditure incurred orauthorised by the political party.

The decision in Kanwar Lai Gupta's case {supra) was based on anobservation extracted from the decision of this Court in Megh Raj Patodfav. R. K. Birla and others [(1971) 2 S.C.R. 118]. In Megh Raj Patodia'scase (supra) the allegations were that the respondent had been put up byone of the wealthiest business houses in the country which owned or con-trolled a large number of companies and during the election campaign vastmaterial and human resources of these companies were drawn upon by therespondent. This Court dismissed the appeal on the ground that the appel-lant had failed to establish that expenditure in excess of the prescribedlimit was incurred by the respondent. In Megh Raj Patodia's case (supra)there is an observation that expenses incurred by a political party to ad-vance the prospects of the candidates put up by it without more do not fallwithin section 77 of the 1951 Act. The words "something more" wereconstrued by counsel for the respondent to mean that if a candidate takesadvantage of expenditure incurred or authorised by a political party suchexpenses could be attributed to a candidate. The Amendment Act, 1974has added Explanation 1 to section 77 of the 1951 Act which shows thatexpenditure incurred or authorised in connecfion with the election of acandidate by the political party shall not be deemed to be expenditure in-curred or authorised by the candidate or his election agent.

Allegations that election expenses are incurred or authorised by acandidate or his agent will have to be proved. Authorisation means ac-ceptance of the responsibility. Authorisation must precede the expenditure.Authorisation means reimbursement by the candidate or election agent ofthe person who has been authorised by the candidate or by the electionagent of the candidate to spend or incur. In order to constitute authorisa-tion the effect must be that the authority must carry with it the right ofreimbursement.

For the foregoing reasons the contentions of the respondent that the •appellant exceeded the limit of election expenses fail.


The respondent contended that the amendments by the AmendmentActs of 1974 and 1975 are constitutionally invalid. It may be stated herethat the Constitution (Thirty-ninth Amendment) Act, 1975 in section 5thereof 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 of1951); 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)".

The contention of the respondent is that when the power of amendingthe Constitution cannot be exercised to damage or destroy the basic fea-tures of the Constitution or the essential elements of the basic structureor framework thereof, the limitation on the exercise of legislative powerwill arise not only from the express limitations contained in the Constitu-tion, but also from necessary implication either under Articles or even inthe Preamble of the Constitution. This contention on behalf of the res-pondent is expended to mean that if the democratic way of life throughparliamentary institutions based on free and fair elections is a basic fea-ture which cannot be destroyed or damaged by amendment of the Consti-tution, it cannot similarly be destroyed or damaged by any legislativemeasure.

These reasons were submitted by the respondent. First, the power toresolve doubts and disputes about the validity of elections of Parliamentand State Legislatures has been vested by the Constitution in the judicialorgan competent to decide election, petitions and, therefore, it is not opento the Legislature to take a way and interfere with these exclusive func-tions of the judiciary by any legislation amending the law governing theelection adjudicated by the judiciary. Second, the insertion of these Actsin the Ninth Schedule will not confer any immunity on the legislative mea-suie if basic features of the Constitution are damaged or destroyed on theground that the provisions contravene Part III of the Constitution. Third,any provision in the legislative measures which has the effect of bringingabout unfairness between different rival candidates in the matter of elec-tion is discriminatory and it not only contravenes Article 14 but also vio-lates the implied limitation on legislative power relating to free and fairelections. Fourth, any amendment of the law with retrospective operationgoverning an election which has already been held necessarily introducesan element of unfairness and brings about a denial of equality among rivalcandidates. Fifth the deeming clause introduced in the 1951 Act by sec-tions 6(b) and 8(o) and (ft) of the Amendment Act, 1975 and the deviceof conclusive proof adopted by section 8 (c) in the Amendment Act, 1975are unconstitutional encroachments on judicial power. Sixth, power con-ferred by an enactment including a constitutional enactment has to be soexercised as to give effect to the guiding iprinciples of the basic norms ofthat legislation and not so as to militate against those guiding principlesor basic norms.

The definition of "candidate" is amended by the Amendment Act,1975. The contentions of the respondent on the amendment of the defini-tion of "candidate" are these. The expression "returned candidate" is des-criptive of the person and the corrupt practices mentioned in section 123of the 1951 Act in relation to a candidate will not be confined to corruptpractices committed with reference to the definition of "candidate". Cor-rupt practices alleged in relation to candidates will be relatable to any

T5BL.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 195

period and will not be confined to corrupt practices alleged between the• date of nomination and the date of election. If corrupt practices are com-mitted by candidates who eventually become returned candidate such cor-rupt practices will be offences within the meaning of section 123 of the1951 Act without any reference to the time of commission.

Counsel on behalf of the respondent also contended as follows. Thebasis of fair and free elections is that the election of a candidate will beavoided if any corrupt practice has been committed by the candidate byor with the knowledge and consent of that candidate. The acts of a candi-date may be either anterior to the date of nomination or it may be sub-sequent to the date of nomination. Therefore, the Amendment Act, 1975destroys and damages free and fair election by allowing candidates to com-mit corrupt practices prior to the date of nomination.

The Amendment Act, 1975 is also challenged as falling within the viceof delegated legislation by the amendments inserted as Explanation 3 tosection 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. Broadlystated expenditure incurred by persons in Government service will not bedeemed to be for furtherance of the candidate's election. The contentionsare these. No guidelines have been laid down as to what expenditure canbe incurred or what facilities can be made, what acts or things can bedone. Delegation cannot include the change of policy. Policy must be clear-ly laid down in the Act for carrying into effect the objectives of the legis-lation. The legislature must declare the (policy. Any duty can be assigned,any facility in connection with the election can be asked for by the partyin power to be done for the candidate. The official duty opens a widepower of instructions to Government servants who may be asked to assistcandidates by canvassing, influencing which will damage fair elections.

The device of conclusive proof which is introduced to add Explanation3 to section 123(7) of the 1951 Act with regard to the date with effectfrom which the person ceased to be in service is said to be an encroach-ment on judicial power.

Section 8(a) of the Amendment Act, 1975 which adds a proviso tosection 123 of the 1951 Act to the effect that no symbol allotted under thisAct to a candidate shall be deemed to be a religious symbol or a nationalsymbol for the purposes of this clause is attacked as legalising religioussymbols and thus offending secularism.

Section 10 of the Amendment Act, 1975 which enacts that the amend-ments shall have retrospective effect is challenged as retrospectively lega-lising a void election. These submissions are made. If this power is up-held there can be a legislative measure to avoid valid elections. The dis-tinction between law abiding persons and lawless persons is eliminated.One person has not been given the opportunity of spending money at thetime of election but the other is restrospectively given the advantage ofspending in excess and thereafter of avoiding the effect of excess expensesby validation.

The contentions on behalf of the respondent that ordinary legislativemeasures are subject like Constitution amendments to the restrictions ofnot damaging or destroying basic structure or basic features are utterly un-sound. It has to be appreciated at the threshold that the contention thatlegislative measures are subject to restrictions of the theory of basic struc-tures or basic features is to equate legislative measures with Constitution

196 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVlI

amendment. The heirarchical structure of the legal order of a state is thatthe Constitution is the highest level within national law. The Constitutionin the formal sense is a solemn document containing a set of legal normswhich may be changed only when special prescriptions are observed. Thepurpose of special prescriptions is to render the change of these normsmore difficult by regulating the manner and form of these amendments.The Constitution consists of those rules which regulate the creation of thegenera] legal norms, in particular, the creation of statutes. It is becauseof the material Constitution that there is a special form for constitutionallaw. If there is a constitutional form then constitution laws must be dis-tinguished from ordinary laws. The material Constitution may determinenot only the organs and procedure of legislation, but also, to some degree,the contents of future laws. The Constitution can negatively determinethat the laws must not have a certain content e.g. that the Parliament maynot pass any statute which restricts religious freedom. In this negativeway not only contents of statutes but of the other norms of legal order,judicial and administrative decisions likewise, may be determined by heConstitution. The Constitution can also positively prescribe certain con-tents of future statutes. This may be illustrated with reference to the pro-visions in Article 22 that no person who is arrested shall be detained incustody without being informed, as soon as may be, of the grounds forsuch arrest nor shall he be denied the right to consult, and to be defendedby, a legal practitioner of his choice.

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 jpower of adelegate. The largest kind of power will be attributed to legislature. Theonly prohibition is with reference to the provisions of the Constitution.The Constitution is the conclusive instrument by which powers are affir-matively created or negatively restricted. The only relevant test for thevalidity of a statute made under Article 245 is whether the legislation iswithin the scope of the affirmative grant of power or is forbidden by someprovision of the Constitution.

To accept the basic features or basic structures theory with regard toordinary legislation would mean that there would be two kinds of limi-tations for legislative measures. One- will pertain to legislative powerunder Articles 245 and 246 and the legislative entries and the provision inArticle 13. The other would be that no legislation can be made as todamage or destroy basic features or basic structures. This will mean re-writing the Constitution and robbing the legislature of acting within theframe work the Constitution. No legislation can be free from challenge onthis ground even though the legislative measure is within the plenarypowers of the legislature.

The theory of implied limitations on the power of amendment of theConstitution has been rejected by seven Judges in Kesavananda Bharati's- (!)case (supra). Our Constitution has not adopted the due process clause ofthe American Constitution. Reasonableness of legislative measures ?s un-known to our Constitution. The crucial point is that unlike the AmericanConstitution where rights are couched in wide general terms leaving it to theCourts to evolve necessary limitations our Constitution as denied due pro-cess as1 a test of invalidity of law. In A. K. Gopalan versus State of Madras(1950 S.C.R. 88) due iprocess was rejected by clearly limiting the rightsacquired and by eliminating the indefinite due process. Our Constitution con-template that consideration of justice or general welfare might require res-triction on enjoyment of fundamental rights.

'E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARA1N 1 9 7

The theory of basic structures or basic features is an exercise in im-ponderables. Basic structures or basic features are indefinable. The legisla-tive entries are the fieldi of legislation. The pith and substance doctrine hasbeen applied in order to find out legislative competency, and eliminate en-croachment on legislative entries. If the theory of basic structures or basicfeatures will be applied to legislative measures it will denude Parliament andState Legislatures of the power of legislation and deprive them of layingdown legislative policies. This will be encroachment on the separation of

• powers.

The constitutional validity of a statute depends entirely on the existenceof the legislative power and the express provision in Article 13. Apart fromthe limitation the legislature is not subject to any other prohibition. Theamendments made to the 1951 Act by the Amendment Acts, 1974 and 1975are to give effect to certain views expressed by this Court in preference tocertain views departed from or otherwise to clarify the original intention. I :is within the powers of Parliament to frame laws with regard to elections.Parliament has power to enumerate and define election expenses. Parliamenthas power to lay down limits on election expenses. Parliament has power tostate whether certain expenses can be included or may be excluded fromelection expenses. Parliament has power to adopt conclusive proof with re-gard to matters^ of appointment, resignation or termination of service. Par-liament 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 constitutecorrupt practice. Parliament has power to enact what will be the groundfor disqualification. Parliament has power to define "candidate". Parlia-ment has power to state what symbols will be allotted to candidates at elec-tion. These-are all legislative policies.

The conclusive evidence or conclusive proof clause is an accepted legis-lative measure. Similarly, giving retrospective effect to legislative amendmentis accepted to be valid exercise of legislative power. The well-known patternof all Validation Acts by which the basis of judgments or orders of com-petent Courts and Tribunals is changed and the judgments and orders aremade ineffective is to be found hi M.P.V. Sundararamier and Co. versusThe State of Andhra Pradesh and another. (1958 S.G.R. 1422). The powerof the legislature to pass a law includes a power to pass it retrospectively.An important illustration with reference to retrospective legislation in re-gard to election is the decision of this Court in Kanta Kethurids case (supra)Kanta Kathuria was disqualified by reason of holding an office of profit.First the Ordinance and later the Act was passed to nullify the decision ofthe High Court. The Ordinance as well as the Act stated thatnotwithstanding any judgment or order of any Court or Tribunal, theofficer shall not be disqualified or shall be deemed never to havedisqualified the holders thereof as a member of the Legis-lative Assembly. The rendering of a judgment ineffective by changing thebasis by legislative enactment is not encroachment on judicial power becausethe legislation is within the competence of the legislature.

A contention was advanced that the legislative measure could not re-move the disqualification retrospectively, because the Constitution contem-plate disqualification existing at certain time in accordance with law exist-ing at that time. One of the views expressed in that case is that Article 191recognises the power of the Legislature of the State to declare by law thatthe holder of the office shall not be disqualified for being chosen as a Mem-ber. Power is reserved to the Legislature of the State to make the declara-tion. There is nothing in the Article to indicate that this declaration cannot14-345 Elec. Com./ND/81

198 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAEAIN [VOL, LVII

be made with retrospective effect. The Act was held not to be ineffectivein its restrospective operation on the ground that it is well recognised thatParliament and State Legislatures can make their laws operate retrospectively.Any law that can be made prospectively can be made with retrospectiveoperation. It is said that certain kinds of laws cannot operate retrospec-tively. That is ex post facto legislation. The present case does not fall with-in that category. Reference may be made to May's Parliamentary Practice17th Ed. p. 515 where instances are given of validation of election by theBritish Parliament.

This Court in Jamuna Prasad Mukariya and others versus Lachhi Ramand others. [(1955) 1 S.C.R. 608] rejected the contention advancer! therethat sections 123(5) and 124(5) of the 1951 Act interfered with a citizen'sfundamental right to freedom of speech. This Court said that these lawsdo not stop a man from speaking. They merely prescribe conditions whichmust be observed if one wants to enter Parliament. The right to stand asa candidate and to contest an election is not a common law right. It is aspecial right created by statute which can only be exercised on the condi-tions laid down by the statute. The Fundamental Rights Chapter has nobearing on a right like this created by a statute relating to Election.

The contention on behalf of the respondent that the amendment of thedefinition of "candidate" has damaged or destroyed basic structure is un-tenable. There is no basic structure or basic feature or basic framework withregard to the time when under the Election Laws a person is a candidateat the election. The contention of the respondent that the expression "re-turned candidate" is descriptive of the expression "candidate" will rob sec-tion 100 of its content. The word "candidate" in relation to various elec-toral offences shows that he must be a candidate at the time of the offence.Time is necessary for fixing the offences. A significant distinction arisesbetween the electoral offences under the 1951 Act and the offences undersections 171-A to 171-1 of the Indian Penal Code, namely, that the 1951Act uses the word "candidate" or his election agent with reference to vari-ous offences, whereas the Indian Penal Code does not use the word "candi-date" in relation to commission of any offence. Any person may fall with-in the offences of bribery, undue influence, personation at elections withinthe provisions of the Indian Penal Code or for false statement or illegalpayments in connection with any election or failure to keep election accounts.

The English Representation of the People Act, 1949 called the English'Act was relied on by the respondent to show that the word "candidate" inthe 1951 Act should have the same meaning as in the English Act and thereshould be no limitation as to time in relation to a candidate. "Candidate"is defined in section 103 of the English Act in relation to parliamentaryelection to mean a person who is elected to serve in Parliament or a per-son who is nominated as a candidate at the election or is declared by him-self or by others to be a candidate on or after the day of the issue of thewrit for the election, or after the dissolution or vacancy in consequence ofwhich the writ was issued. The electoral offences under the English Actspeak of a person to be guilty of corrupt practices of bribery as mentionedin section 99, of treating as mentioned in section 100 and of undue influenceas mentioned in section 101 of the English Act. These sections in theEnglish Act speak of a person and do not use the expression "candidate".

Where a candidate is elected the English definition gives no commencingdate as from which his candidature has commenced; whereas, if he be notelected, he is not a candidate until he has been nominated, or is declared

B.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 199

to be a candidate on or after the dissolution or vacancy. A candidate whois elected is accordingly a "candidate" as soon as he has entered upon hiselection campaign, and has made it known that he intends to present him-self as a candidate at the ensuing election, he may thus become a candidatebefore the dissolution of Parliament, and may be unseated for bribery ortreating committed months or even years before the vacancy or election, forsuch acts are offences at common law. With respect to illegal practices,which are purely statutory offences, it would seem that a narrower construc-tion will prevail, and that a candidate will not be held responsible for pay-ments etc. made before he is a candidate in point of fact, and which pay-ments only become illegal practices by reason of his subsequently becominga candidate (See Parkers Conduct of Parliamentary Elections, 1970 Ed.,pages 52-53).

It has been held in England that a candidate may be unseated forbribery or treating commited months or even years before the vacancy orelection (Youghai 1 O' M. & H. 295); (Bodmin 5 O' M. & H. 230). The pre-sent position under the English Act is stated in Parker's Conduct of Parlia-mentary Elections 1970 Ed. at p. 330 to be that since the corrupt practiceunder consideration is purely a statutory offence, which only becomes a cor-rupt practice by reason of the ,person in whose support the prohibited ex-penses were incurred subsequently becoming a candidate, the candidate maynot be held responsible. In Norwick (54 L. T. 627) the question was con-sidered in relation to the responsibility of a candidate for payments whichonly 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 regardto election expenses as laid down in section 63 of the English Act is re-garded as open to doubt until the point is settled by the decision of anelection court.

Sections 171-A to 171-1 of the Indian Penal Code and the provisionscontained in sections 125 to 136 of the 1951 Act follow the pattern ofEnglish Acts, namely, Statutes 17 and 18 Victoria, Chapter CII (1853-54);Statutes 21 and 22 Victoria, Chapter LXXXVII (1858) and Statutes 46 and47 Victoria, Chapter LI (1882). These English statutes make certain actspunishable as corrupt practice when they relate to persons other than candi-dates or voters. Section II of 17 and 18 Victoria, Chapter CII enacts thatthe persons mentioned therein shall be deemed guilty of bribery and punish-able in accordance with the provisions of the Act. The words used thereare "every person" who shall do the acts mentioned therein shall be puni-shable. In these sections dealing with the acts of persons other than candi-dates and voters no time is mentioned. On the other hand, Section IV ofstatutes 17 and 18 Victoria, Chapter CII makes certain acts of voters andcandidates corrupt practice. Section IV of the aforesaid English statute en-acts that every candidate at an election who shall corruptly by himself, orby or with any person or by any other ways or means on his behalf, atany time, either before, during, or after any election, directly or indirectly

• give or provide, or cause to be given or provided any expenses incurred forany meat, drink, entertainment etc. shall be deemed guilty of an offence oftreating. In these sections when the acts of voters and candidates are madepunishable the words used are "before or during any election, directly orindirectly or at any time either before, during or after any election" in Sec-tion IV of the Act. These words make acts of voters or candidates com-mitted before or during an election also corrupt practice. Without thesewords acts of the candidate made punishable under the English statuteswould only be the acts committed by the candidate after he becomes acandidate.


The 1951 Act uses the expression "candidate" in relation to severaloffences for the purpose of affixing liability with reference to a person beinga candidate. If no time be fixed with regard to a person being a candi-date it can be said that from the moment a person is elected he can besaid to hold himself out as a candidate for the next election. The definitionin the English Act cannot be of any aid to the construction of the 1951 Act

The contention of the respondent is that if a candidate is free to spendas much as a candidate likes before the date of nomination a great pre-mium would be placed on free use of money before the date of nomination.The 1951 Act specifies what election expenses are of a candidate. Thestatute specifies time in regard to a candidate. That time cannot be en-larged or reduced. The holding out by a person of candidature was a flexibleand elastic idea. The date of nomination is definite and doubtless. Differentviews may be taken as to the time of holding out. The Legislature hasnow set the matter at rest.

The word "incur"' according to the dictionary meaning means tobecome liable to. The word "incur" means undertake the liability even ifthe actual payment may not be made immediately. Theundertaking of the responsibility i'cr Use expenditure con-cerned may be either by the candidate or his election agent. Again, a candi-date is also to be dsemed responsible for the expenditure if he hus autho-rised a particular expenditure to be made by som::onc else on r.h beh?lf.

The contention on behalf of the respondent is tliat the Aia.•ndmerJ. Actsof 1974 and 1975 fall within the vice of delwi..a!ed Icgislat;cn because thereare no guiding principles with regard to oilier! duty or nadir? of v:-;pen-diture in Explanation 3 to section 77 of the 1951 Act and in the provisoto section 123(7} of the 1951 Act. Official duty will bs a duty ir- law.Official duty will be duty under administrative directions of the executive.Official duty will be for security, law and order, and matters iu aid of pub-lic purpose. These duties will be in connection wilh election. To iliu.vrjue,section 197 of the Criminal Procedure Code speaks of official duty.

This Court in Matajog Dobey v. H. C. Bhari [(1955) 2 S.C.T--.. <??.5]interpreted the words "official duty" to have reasonable connection Iv.weonthe act and the discharge of duty. The act must bear such relation ::• theduty that the person could lay a reasonable claim, but not a protendedfanciful claim, that he did it in the course of the performance of hi'; duty.Where a power is conferred or a duty imposed by statuteor otherwise, and there is nothing said expressly inhibitingthe exercise of the power or the performance of the dutvby any limitations or restrictions, it is reasonable .to hold that it carrieswith it the power of doing all such acts or employing such means as arereasonably necessary for such execution, because it is a rule that when thelaw commands a thing to be done, it authorises the performance of whatevermay be necessary for executing its command.

There is no vice of delegation in the statutes. "Delegation" is not thecomplete handing over or transference of a power from one person orbody of persons to another. Delegation may be defined as the entrusting,by a oerson or body of persons, of the exercise of a power residing inthat person or body of persons to another person or body of persons, withcomplete power of revocation or amendment remaining in the grantor ordelegator. It is important to grasp the implications of this, for much con-fusion of thought has unfortunately resulted from assuming that delegation

E.L.R ] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 201

involves or may involve, the complete abdication or abrogation of a power.This is precluded by the definition. Delegation often involves the grant-ing of discretionary authority to another, but such authority is purely deri-vative. The ultimate power always remains in the delegator and is neverrenounced. See Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. The AssistantCommissioner of Sales Tax and others [(1974) 4 S.C.R. 98 at p. 116].

The Constitution 29th Amendment Act was considered by this Courtin Kesavananda Bharati's case (supra). The 29th Amendment Act insertedin the Ninth Schedule to the Constitution Entries 65 and 66 being theKerala Land Reforms Act, 1969 and the the Kerala LandReforms . Act, 1971. This Court unanimously upheld thevalidity of the 29th Amendment Act. The unanimous view of this Courtin Kesavananda Bharati's case (supra) is that Article 3IB is not open tochallenge. Six Judges held that the 29th Amendment Act would be in-effective to protect the impugned Act if they took away the fundamentalrights. Six Judges took the view that the 29th Amendment Act is validand further that Article 3IB has been held by this Court to be independentof Article 31A and that Article 31B protects Scheduled Acts and Regula-tions and none of the Scheduled Acts and Regulations is deemed to bevoid or ever to have become void on the ground of contravention of anyfundamental rights. Article 3 IB gives a mandate and complete protectionfrom the challenge of fundamental rights to the Scheduled Acts and Re-gulations. The view of seven Judges in Kesavananda Bharati's case is thatArticle 3 IB is a constitutional device to place the specifiedstatutes in the Schedule beyond any attack that these infringePart III of the Constitution. The 29th Amendment is affirmed inKesavananda Bharati's case (supra) by majority of seven against six Judges*

The contentions of the respondent that the Amendment Acts of 1974and 1975 are subject to basic features or basic structure or basic frame-work fails on the grounds. First, legislative measures are not subject tothe theory of basic features or basic structure or basic framework. Second,the majority view in Kesavananda Bharati's case (supra) is that the 29th"Amendment which put the two statutes in the Ninth Schedule and Article3IB is not open to challenge on the ground of either damage to or destruc-tion of basic features, basic structure or basic framework or on ths groundof violation of fundamental rights.

The symbol allotted to the party of the appellant was characterisedby the respondent as a religious symbol. Under Article 324 the superin-tendence, direction and control of elections to Parliament, is vested in theElection Commission. Rule 5 of the Conduct of Elections Rules, 1961states that the Election Commission shall, by notification in the Gazetteof India and in the official Gazette of each State, specify the symbols thatmay be chosen by candidate at elections, in Parliamentary or Assemblyconstituencies and the restrictions to which their choice shall be subject.Rule 10(4) of the 1961 Rules aforesaid states that at an election in aParliamentary or Assembly constituency where a poll becomes necessary,the Returning Officer shall consider the choice of symbols, expressed bythe contesting candidates in their nomination papers and shall, subject toany general or special direction issued in this behalf by the ElectionCommission allot a different symbol to each contesting candidate in con-formity, as far as practicable with his choice. It is, therefore, apparentthat the power to specify permissible symbols is vested by rule 5 in theElection Commission. The choice of candidates is limited to the symbolspecified by the Election Commission. The Election Symbols (Reservation


and Allotment) Order, 1968 was made in exercise of the power conferredby Article 328 of the Constitution read with rule 5 and rule 10 of theConduct of Election Rules and all other powers enabling in this behalf.

Clause 17 of the Election Symbols (Reservation and Allotment) Order,1968 provides that the Commission shall by, notification in the Gazette ofIndia publish lists specifying national parties and the symbols respectivelyreserved for them etc. There can, therefore, be no doubt that the powerof evolving permissible symbols is exclusively vested in the Election Com-mission. It is under their direction that the Returning Officer has to makeallotments and allotments are made in terms of clauses 5, 6 and 8. There-fore, in the matter of evolving of the permissible symbols, the jurisdictionis vested in the Election Commission. If a candidate displays in additionto the allotted symbol an additional symbol which may have a specialappeal on grounds of religion to a particular community, then the Courtwill be entitled to go into this question.

With regard to the symbol of cow and calf being a religious symbolit was said on behalf of the respondent that the Akhil Bharatiya RamRajya Parishad asked for cow, calf and milk-maid symbol and were re-fused. They were given the symbol of a "Rising Sun". It is impossibleto hold that because one party has been given the symbol of cow. calf andmilkmaid, therefore, the symbol of cow and calf becomes a religious sym-bol. The High Court on the evidence adduced by the respondent rightlycame to the conclusion that there was no evidence to prove that the cowand calf is a religious symbol. The High Court rightly held 'hat cow andcalf is not a religious symbol.

The finding of the High Court that the appellant held herself out tobe a candidate from 29th December, 1970 is set aside because the law isthat the appellant became a candidate only with effect from the date ofnomination which was 1st February, 1971. The finding of the High Courtthat the resignation of Yashpal Kapur did not become effective unfil it wasnotified in the Gazette is also set aside because under the law the iesigna-tion became effective from 14th January, 1971. The finding of the HighCourt that the appellant committed corrupt practice in breach of section123(7) of the 1951 Act is also repelled by the legislative changes and is,therfeore, set aside. The order of disqualification of the appellant is alsoset aside.

For the foregoing reasons the contentions of the appellant succeedand the contentions of the respondent fail. The appeal is accepted. Thejudgment of the High Court appealed against is set aside. The cross-objection of the respondent is dismissed. There will be no order as to costs.

KHANNA, J.—Civil Appeal No. 887 of 1975 has been filed bv ShrimatiIndira Nehru Gandhi (hereinafter referred to as the appellant) against thejudgment of the Allahabad High Court whereby election petition filed bySri Raj Narain, respondent no. 1 (hereinafter referred to as the respondent)to question the election of the appellant to the Lok Sabha from Rae BareliParliamentary constituency was allowed and the election of the appellantwas declared void. The appellant was found guilty of having committedcorrupt practices under section 123(7) of the Representation of the PeopleAct, 1951 (hereinafter referred to as the R. P. Act) and as such wa? statedto be disqualified for a period of six years in accordance with section 8Aof the R. P. Act. Cross Appeal No. 909 of 1975 has been filed bySri Raj Narain against the judgment of the High Court is so far as itdecided certain issues against the respondent.

E.L R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARA1N 2 0 3

The President of India called upon different constituencies in thecountry to elect members to tne Lok Sabha by notification dated January27. 1971 under section 14(2) of the R. P. Act. Last date for filing nomina-tion papers was fixed as February 3, 1971, for Rae Bareli constituency bv

office. Yashpa] Kapur, who was previously a gazetted officer in theGovernment of India holding the post of Officer on Special Duty in thePrime Minister's secretariat and who subsequently submitted his resigna-tion, was appointed the election agent of the appellant. The signed formabout the appointment of Yashpal Kapur, as election agent was submittedto ;he Returning Officer on February 4, 1971, the date of scrutiny. Theda<e on which Yashpa! Kapur submitted his resignation and the samebecame effective is. however, a matter of controversy between the parties.The appellant, who was a candidate of the Indian National Congress (R).war allotted the party symbol of cow and calf. Polling took place in thefir-t week of March on March 1, March 3 and March 5, 1971. The appel-lant and the respondent were the principal contestants. There were twoother candidates but we are not concerned with them. The result of theelection was declared on March 10, 1971. The appellant got 1,83,309vo:es, while the respondent secured 71,499 votes and the former was dee-lared elected. The respondent thereafter filed election petition on April24. 1971 to challenge the election of the appellant. Apart from some groundswhich were not pressed, the election of the appellant was assailed on thefollowing grounds:

(1) The appellant held herself out as a prospective candidate fromthe Rae Bareli constituency immediately after the dissolution ofthe Lok Sabha as on December 27, 1970, and for furtherance ofher election prospects; she obtained and procured the assistanceof Yashpal Kapur, who was at that time holding the post ofOfficer on Special Duty. The appellant thus committed corruptpractice under section 123(7) of the R. P. Act.

(2) The appellant and her election agent procured the assistance ofmembers of armed forces of the Union for furtherance of herelection prospects inasmuch as the members of the armed forcesarranged planes and helicopters of the Air Force at her instancefor flights to enable her to address meetings in her constituency.The appellant hereby committed corrupt practice under section123(7) of the R. P. Act.

(3) The appellant and her election agent obtained the assistance ofa number of gazetted officers and members of the police forcefor the furtherance of her election prospects inasmuch as theservices of the District Magistrate, Superintendent of Police,Rae Bareli and the Home Secretary, Uttar Pradesh Governmentwere utilised for *he purposes of the construction of rostrums andinstallation of loudspeakers at various places within the consti-tuency where the appellant addressed her election meetings asalso for the purpose of making arrangements of barricading andposting of police personnel on the routes by which the appellantwas *o travel in her constituency and at the places where she wasto address meetings in order to give publicity to her visits andthus attract large "crowds. The appellant was thereby stated J ohave committed corrupt practice under section 123(7) of TOR. P. Act.


(4) Yashpal Kapur, election agent of the appellant and her otheragents with the consent of Yashpal Kapur, freely distributedquilts, blankets, dhotis and liquor among the voters to inducethem to vote for her and thereby the appellant committed corruptpractice of bribery under section 123 (1) of the R. P. Act.

(5) The appellant and her election agent made extensive appeals tothe religious symbol of cow and calf and thereby committedcorrupt practice under section 123 (3) of the R. P. Act

(6) Yashpal Kapur, and some other persons with his consent hiredand procured a number of vehicles for the free conveyance ofelectors to the polling stations and thereby committed corruptpractice under section 123 (5) of the R. P. Act,

(7) The appellant and her election agent incurred or authorised expen-diture incontravention of section 77 of the R. P. Act and therebycommitted corrupt practice under section 123(6) of the Represen-tation of the People Act.

The appellant in her written statement denied the various alteo^'ionslevelled against her and pleaded that Yashpal Kapur, resigned from hispost on January 13, 1971 and his resignation was accepted with effect fromJanuary 14, 1971. Notification dated January 25, 1971 was issued by thePrime Minister's Secretariat in that connection. It was added that P. N.Haksar, then Secretary to the Prime Minister, told Yashpal Kapur, on thesame day on which the resignation was tendered that it was accepted andthat formal orders would following. Yashpal Kapur became the electionagent of the appellant on February 4, 1971. During the period hi was agazetted officer in the Government of India, he did not do any work infurtherance of the appellant's election prospects. Regarding the use ofplanes and helicopters of the Air Force, the appellant admitted '.hat onFebruary 1, 1971, she wen; by an Indian Air Force plane from Delhi toLucknow from where she went by car to Rae Bareli, addressing rr.^tin^senroute. It was further admitted that on February 24, 1971 the appellantwent by helicopter of the Indian Air Force to Gonda on regular party workand that from 'here she went by car to Lucknow, Unnao and Rae Baieliaddressing public meetings in several constituencies besides her own. Theappellant referred to the Pillai Committee Report and the Office Memo-randa, issued by the Government of India and asserted that the aforesaidflights were made by her in accordance with them. It was added tha1

under the rules, bills for those flights were to be paid by the All IndiaOongress Committee and most of them had already been paid. Accordingto the appellant, neither she nor did her election agent solicit, require ororder the use of Air Force planes and the Government of Tndia providedthe planes as part of their normal duty. The appellant denied havingobtained the assistance of the District Magistrate and the Superintendentof Police, Rae Bareli as also that of the Home Secretary, U. P. Governmentfor any of the purposes mentioned in the petition. The appellant in thiscontext referred to the instructions issued by the Comptroller and AuditorGeneral of India She pleaded that arrangements for posting of policeon the routes which she followed and the arrangements of rostrums weremade bv the State Government itself in compliance with those mstruc ions.In regard to the loudspeakers, she pleaded that those were arrange J b ythe District Congress Committee and not by the officers of the S ate Gov-ernment It was denied that any directions or instructions m that regard


were issued by the appellant or her election agent. The allegations regard-ing the distribution of blankets, dhotis and liquor were stated to be abso-lutely false. As regards the symbol of cow and calf, the appellant statedthat it was not a religious symbol and that it was wrong that extensiveappeals were made by her or her election agent to that symbol. Theappellant added that she and her election agent merely informed the votersthat the symbol of the Indian National Congress (R) was cow and calfand that the voting mark should be put against that symbol. The decisionof the Election Commission allotting the symbol of cow and calf to herparty was final and the same could not, according to the appellant, bemade a ground of attack nor could the court go into that question. Theallegation regarding hiring and procuring of vehicles and the use thereoffor conveyance of the voters to the polling stations was described by theappellant as false. Likewise, she denied the allegation that she or herelection agent incurred expenditure in excess of the prescribed limit,.

Following issues were framed in the case:

'(1) Whether respondent no. 1 obtained and procured the assistance ofYashpal Kapur in furtherance of the prospects of her electionwhile he was still a Gazetted Officer in the service of Governmentof India? If so, from what date?

(2) Whether at the instance of respondent no. 1 members of theArmed Forces of the Union arranged Air Force planes and helicop-ters for her, flown by members of the Armed Forces, to enable herto address election meetings on 1st February, 1971 and 25thFebruary, 1971, and if so, whether this constituted a corruptpractice under section 123(7) of the Representation of the PeopleAct?

(3) Whether at the instance of respondent no. 1 and her election agentYashpal Kapur, the District Magistrate of Rae Bareli, the Superin-tendent of Police of Rae Bareli and the Home Secreary of U. P.Government arranged for rostrums, loudspeakers and barricadesto be set up and for members of the Police Force to be posted inconnection with her election tour on 1st February, 1971 and 25thFebruary, 1971; and if so, whether this amounts to a corruptpractice under section 123(7) of the Representation of the PeopleAct?

(4) Whether quilts, blankets, dhotis and liquor were distributed byagents and workers of respondent no. 1, with the consent of herelection agent Yashpal Kapur, at the places and on the dates men-tioned in Schedule A of the Petition in order to induce electors tovote for her?

(5) Whether the particulars given in paragraph 10 and Schedule Aof the Petition are too vague and general to afford a basis forallegations of bribery under section 123(1) of the Representationof the People Act?

(6) Whether by using the symbol cow and calf, which had been allot-ted to her party by the Election Commission in hsr electioncampaign the respondent no. 1 was guilty of making an appealto a religious symbol and committed a corrupt practice as definedin section 123(3) of the Representation of the People Act?

2 0 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ N\RAIN [VOL. LVII

(7) Whether on the dates fixed for the poll voters were conveyed tothe polling stations free of charge on vehicles hired and procuredfor the purpose by respondent no. l's election agent YashpalKapur, or other persons with his consent, as detailed in ScheduleB to the Petition?

(8) Whether the particulars given in paragraph 12 and Schedule B ofthe Petition are too vague and general to form a basis for allega-tions regarding a corrupt practice under section 123(5) of theRepresentation of the People Act?

(9) Whether respondent no. 1 and her election agent Yashpal Kapurincurred or authorised expenditure in excess of the amount pres-cribed by section 77 of the Representation of the People Act,read with rule 90, as detailed in para 13 of the Pe'iiion?

(1Q) Whether the petitioner had made a security deposit in accordancewith the rules of the High Court as required by section 117 of theRepresentation of the People Act?

(11) To what relief, if any, is the petitioner entitled?"'

Subsequent to the framing of the above issues, the following three addi-tional issues were framed in pursuance of the judgment of this Court inan appeal against an interlocutory order of the High Court:

"(1) Whether respondent no. 1 obtained and procured the assistanceof Yashpal Kapur in furtherance of the prospects of her electionwhile he was still a Gazetted Officer in the service of the Gov-ernment of India? If so, from what date?

(2) Whether respondent no. 1 held herself out as a candidate fromany date prior to 1st February, 1971, and, if so, from what date?

(3) Whether Yashpal Kapur continued to be in the service of G o v -ernment of India from and after 14th January, 1971 or till whichdate?"

During the pendency of the election petition in the High Court,section 77 of the Representation of the People Act was amended by anOrdinance which was subsequently replaced by Act 58 of 1974 (hereinafterreferred to as the 1974 amending Act or Act 58 of 19741 The said amendingAct inserted two explanations at the end of sub-section (I) of section 77of the Representation of the People Act. The material part of the explana-tions reads as under:

"Explanation 1.—Notwithstanding any judgment, order or decision ofany court to the contrary, any expenditure incurred or authorizedin connection with the election of a candidate by a political partyor by any other association or body of persons or by any individual(other than the candidate or his election agent) shall not be deemedto be, and shall not ever be deemed to have been, expenditure inconnection with the election incurred or authorized by the candidateor by his election agent for the purposes of this sub-section :

Provided

Explanation 2.—For the purposes of Explanation 1, 'political party'shall have the same meaning as in the Election Symbols (Reserva-tion and Allotment) Order, 1968, as for the time being in force."

E.L R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 207

The above amendment in section 77 had a bearing on the allegation whichwas the subject-matter of issue no. 9 The respondent filed writ petitionchallenging the validity of the amending Act.

The High Court decided issues 2, 4, 6 and 7 in favour of the appellantand against the respondent. Issues 5, 8 and 10 were found in favour of therespondent and against the appellant. On issue no. 9 the finding of theHigh Court was that the total amount of expenditure incurred or authorizedby the appellant or her election agent, together with the expenditure provedto have been incurred by the party or by the State Government in connec-tion with the appellant's election amounted to Rs. 31,976.47 which wassufficiently below the prescribed limit of Rs. 35,000. The appellant as suchwas held net guilty of any corrupt practice under section 123(6) of theRepresentation of the People Act. As the respondent was found to havefailed to prove that the expenses of the appellant or her election agent,

• together with the expenses found to have been incurred by the politicalparty and the State Government in connection with the appellant's electionexceeded the prescribed limit, the High Court held that no ground hadbeen made out for inquiring into the validity of the 1974 amending Act.The writ petition filed by the respondent was accordingly dismissed.

On additional issue no. 2, the finding of the High Court was that theappellant held herself out as a candidate from the Rae Bareli ParliamentaryConstituency on December 29, 1970. Issue no. 3 was decided by the HighCourt against the appellant. It was held that the appellant obtained theassistance of the officers of the U. P. Government, particularly the DistrictMagistrate, Superintendent of Police, the Executive Engineer, P.W.D. andthe Engineer, Hydel Department for construction of rostrums and arrange-ment of supply of power for loudspeakers in the meetings addressed by heron 1st February, 1971 and 25th February, 1971 in furtherance of her electionprospects. The appellant as such, was found guilty of corrupt practiceunder section 123(7) of the Representation of the People Act. On additionalissue no. 3, the High Court found that Yashpal Kapur continued to bein the service of the Government of India till 25th- January, 1971. whichwas the date of the notification regarding the acceptance of Yashpal Kapur'sresignation. The High Court referred to the fact that according to thenotification resignation of Yashpal Kapur had been accepted with effect from14th January, 1971 and observed that the order acceptintg the resignationwas passed on 25th January, 1971 and till that order was passed, the statusof Yashpal Kapur continued to remain that of a Government servant despitethe fact that when that order was passed it was given restrospective effectso as 10 be valid from 14th January, 1971.

As regards issue no. 1 and additional issue no. 1, the High Court heldthat the appellant obtained and procured the assistance of Yashpal Kapurduring the period from 7th to 24th January, 1971 when Yashpal Kapur wasstill a gazetted officer in the service of the Government of India in thefurtherance of her election prospects.

As a result of its findings on issue no 3, issue no 1 read wi'h additionalissue no. 1, additional issue no. 2i and additional issue no. 3. the High Courtallowed the petition and declared the election of the appellant to the LokSabha to be void. The appellant was found guilty of having committed cor-rupt practice under section 123(7) of the Representation of the People Actby having obtained the assistance of gazetted officers of the U. P. Govern-ment, viz. the District Magistrate and the Superintendent of Police. RaeBareli the Executive Engineer, P.W.D., Rae Bareli and Engineer, HydelDepartment, Rae Bareli in furtherance of her election prospects. The

2 0 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. L V a

appellant was further found guilty of having committed another corruptpractice under section 123(7) of the Representation of the People Act byhaving obtained the assistance of Yashpal Kapur, a gazetted officer in theGovernment of India holding the post of Officer on Special Duty in PrimeMinister's Secretariat, for the furtherance of her election prospects._ Theappellant, it was accordingly observed, stands disqualified for a period ofsix years from the date of the order in accordance with the section SA ofthe Representation of the .People Act. The writ petition, as mentionedearlier, was dismissed.

An appeal against the judgment of the learned single Judge of theHigh Court dismissing the writ petition is pending before the High Court.

During the pendency of these appeals, Parliament passed the ElectionLaws (Amendment) Act, 1975 (Act 40 of 1975) (hereinafter referred to as1975 amending Act or Act 40 of 1975) and the same was published in theGazette of India, Extraordinary dated 6th August, 1975. Section 2 of the1975 amending Act substituted a new section for section 8A in the Act.According to the new section, the case of every person found guilty of acorrupt practice by an order under section 99 shall be submitted as soon asmay be after such order takes effect to the President for determination of shequestion as to whether such person shall be disqualified and if so, for whatperiod, not exceeding six years. It is also, provided that the person whostands disqualified may before the expiry of the period of disqualificationsubmit a petition to the President for the removal of such disqualificationfor the unexpired portion of the said period. The President shall then givehis decision on such petition after obtaining the opinion of the ElectionCommission and in accordance with such opinion. Sections 3, 4 and 5 ofthe 1975 amending Act deal with other consequential matters relating todisqualification, and it is not necessary for the purpose of the present caseto go into them. Sections 6 and 7 amended sections 77 and 79 of theRepresentation of the People Act and we shall refer to them presently.Same i? the position of section 8 of the amending Act which introducedchanges in section 123 of the Representation of the People Act. Section 9amended section 171A of the Indian Penal Code. Section 10 gives retros-pective effect to sections 6, 7 and 8. Sections 6, 7, 8, 9 and 10 of Act 40of 1975 read as under:

"6. In section 77 of the principal Act, in sub-section (1),—

(a) for the words 'the date of publication of the notification callingthe election', the words 'the date on which he has been nominated'shall be substituted.

(b) after Explanation 2, the following Explanation shall be inserted,namely: —

'Explanation 3.—For the removal of doubt, it is hereby declaredthat any expenditure in respect of any arrangements made,facilities provided or any other act or thing done by anyperson in the service of the Government and belonging to anyof the classes mentioned in clause (7) of section 123 in 'hedischarge or purported discharge of his official duty as men-tioned in the proviso to that clause shall not be deemed to beexpenditure in connection with the election incurred or autho-rized by a candidate or by his election agent for the purposesof this sub-section.'

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN

7. In section 79 of the Principal Act, for clause (&), the followingclause shall be substituted, namely : —

\b) "candidate" means a person who has been or claims to havebeen duly nominated as a candidate at any election.'

8. In section 123 of the principal Act,—(a) in clause (3), the following proviso shall be inserted at the end,

namely: —

'Provided that no symbol allotted under this Act to a candidateshall be deemed to be a religious symbol or a national symbolfor the purposes of this clause.';

(b) in clause (7), the following proviso shall be inserted at ihe end,namely: —

'Provided that where any person, in the service of the Governmentand belonging to any of the classes aforesaid, in the dischargeor purported discharge of his official duty, makes any arrange,ments or provides any facilities or does any other act or thing,for, to, or in relation to, any candidate or his agent or anyother person acting with the consent of the candidate or hiselection agent (whether by reason of the office held by ihecandidate or for any o'her reason), such arrangements, facilitiesor act or thing shall not be deemed to be assistance for thefurtherance of the prospects of that candidate's election..';

(c) in the Explanation at the end, the following shall be added,namely: —

'(3) For the purposes of clause (7), notwithstanding anything con-tained in any o'her law, the publication in the Official Gazetteof the appointment, resignation, termination of service, dis-missal or removal from service of a person in the service ofthe Central Government (including a person ferving in con-nection with the administration of a Union territory) or of aState 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, resig-nation, termination of service, as the case may be, is statedin such publication, also of the fact that such person wasappointed with effect from the said date, or in the case ofresignation, termination of service, dismissal or removalfrom service, such person ceased to be in such service wi^heffect from the said date.'

9. In the Indian Penal Code, in section 171 A, for clause (a\ thefollowing clause shall be substituted, namely:—•

'(«) "candidate" means a person who has been nominated as acandidate at any election.'

10. The amendments made by sections 6, 7 and 8 of this Act in theprincipal Act shall also have retrospective operation so as to applyto and in relation to any election held before the commencement of


this Act to either House of Parliament or to either House or theHouse of the Legislature of a State—

"(i) in respect of which any election petition may be presented afterthe commencement of this Act; or

(ii) in respect of which any election petition is pending in any HighCourt immediately before such commencement; or

(iii) ifl respect of which any election petition has been decided by anyHigh Court before such commencement but no appeal has beenpreferred to the Supreme Court against the decision of the HighCourt before such commencement and the period of limitationfor filing such appeal has not expired before such commence-ment; or

(iv) in respect of which appeal from any order of any High Courtmade in any election petition under section 98 or section 99 ofthe principal Act is pending before the Supreme Court imme-diately before such commencement."

It is submitted by Mr. Shanti Bhushan on behalf of the respondent thatthe amendments made in the Representation of the People Act have animpact upon five out of the seven grounds which were set up by the respon-dent to assail the election of the appellant.

On August 10, 1975 the Constitution (Thirtyninth Amendment) Act,1975 was published. A number of constitutional changes were made by theConstitution Amendment Act. We are, however, concerned with section 4of the Constitutional Amendment Act which inserted Article 329A in theConstitution after Article 329. Article 329A reads as under:

"329A. Special provision as to elections to Parliament in the case ofPrime Minister and Speaker.—(1) Subject to the provisions* ofChapter II of Part V [Except sub-clause (e) of clause (1) of article102], no election—

(a) to either House of Parliament of a person who holds the office ofPrime Minister at the time of such election or is appointed asPrime Minister after such election; %

(b) to the House of the People of a person who holds the office ofSpeaker of that House at the time of such election or who ischosen as the Speaker for that House after such election;

shall be called in question, except before such authority [not beingany 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 underany law made by Parliament and any such law may provide forall other matters relating to doubts and disputes in relation to suchelection including the grounds on which such election may bequestioned.

(2) The validity of any such law as is referred to in clause (1) andthe decision of any authority or body under such law shall not .becalled in question in any court.

(3) Where any person is appointed as Prime Minister or, as the casemay be, chosen to the office of the Speaker of the House of thePeople, while an election petition referred to in clause (b) of Article329 in respect of his election to either House of Parliament or, as

B.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN - 211

the case may be, to the House of the People is pending, suchelection petition shall abate upon such person being appointed asPrime Minister or, as the case may be, being chosen to the officeof the Speaker of the House of the People, but such election maybe called in question under any such law as is referred to inclause (1).

(4) No law made by Parliament before the commencement of theConstitution (Thirty-nine Amendment) Act, 1975, in so far as itrelates to election petitions and matters connected therewith, shallapply or shall be deemed ever to have applied too or in relationto the election of any such person as is referred to in clause (1)to either House of Parliament and such election shall not bedeemed to be void or ever to have become void on any ground onwhich such election could be declared to be void or has, beforesuch commencement, been declared to be void under any such lawand notwithstanding any order made by any court, before suchcommencement, declaring such election to be valid, such electionshall continue to be valid in all respects and any such order andany finding on which such order is based shall be and shall bedeemed always to have been void and of no effect,

(5) Any appeal or cross appeal against any such order of any courtas is referred to in clause 4 pending immediately before the com-mencement of the Constitution (Thirty-ninth Amendment) Act,1975, before the Supreme Court shall be disposed of in conformitywith the provisions of clause (4).

(6) The provisions of this Article shall have effect notwithstanding any-thing contained in this Constitution."

Section 5 of the above Constitution Amendment Act inserted in theNinth Schedule to the Constitution a number of enactments including theR. P. Act as also Acts 58 of 1974 and 40 of 1975.

0 At the hearing of the Appeal Mr. Sen on behalf of the appellant hasrelied upon clause (4) of the new Article 329-A and has contended that thatclause clearly applies to the present case. It is urged that in view of thatclause no law made by Parliament before the coming into force of theConstitution (Thirty-ninth Amendment) Act, 1975, i.e., before August 10,1975, in so far as it relates to the election petitions and matters connectedtherewith shall apply or shall be deemed ever to have applied to or inrelation to the election to the Lok Sabha of the appellant who being PrimeMinister is one of the persons referred to in clause (1) of that article. It isfurther submitted that in view of that clause, the election of the appellantshall not be deemed to be void or ever to have become void on any groundon which such election could be declared to be void or has before such com-mencement been declared to be void under any such law. Mr. Sen also addsthat notwithstanding the order made by the High Court before such com-mencement declaring the election of the appellant to be void, her electionshall continue to be valid in all respects and any such order and any findingon which such order is based shall be and shall be deemed always to havebeen void and of no effect. Submission is consequently made that in viewof the mandate contained in clause (5) of the article, the appeal filed bythe appellant and the cross appeal filed by the respondent should be disposedof in conformity with the provisions of clause (4).

2 1 2 SMT. INDIRA NEHRU GANDHI V, SHRI RAJ NARAIN [VOL. LYII

In reply Mr. Shanti Bhushan oa behalf of the respondent has not con-troverted, and in our opinion rightly, the stand taken by Mr. Sen that clause(4) of the article applies to the facts of the present case. He, however, con-tends that section 4 of the Constitution Amendment Act which has insertedarticle 329A in the Constitution is invalid. The validity of the above cons-titutional amendment has been challenged by Mr. Shanti Bhushan on thefollowing two grounds:

(1) The above constitutional amendment affects the basic structure orframe work of the Constitution and is, therefore, beyond theamending power under Article 368.

(2i) The Constitution Amendment Act was passed in a session ofParliament after some members of Parliament had been un-constitutionally detained and thus illegally prevented from influen-cing the views of other members present at the time the above Actwas passed. This ground, it is urged, also affects the validity ofthe amending Act 40 of 1975.

Article 329-A deals with, election to either House of Parliament of aperson who holds the office of Prime Minister at the time of such slectionor is appointed as Prime Minister after such election and to the House ofthe People of a person who holds the office of Speaker of that House at thetime of such election or who is chosen as the Speaker for that House aftersuch election. According to clause (1) of Article 329A, no election ofpersons mentioned above shall be called in question, except before suchauthority or body and in such manner as may be provided for by or underany lawmade by Parliament. I t is made clear that the authority beforewhich such election shall be called in question would not be the one as isreferred to in clause (Z>) of Article 329. The Jaw to be madeby Parliamentunder clause (1) may provide for all other matters relating to doubts anddisputes in relation to such election including the grounds on which suchelection may be questioned. The above law shall be subject to the provi-sions of clause (1) of Article 102 except sub-clause (e). The law made underclause (I) cannot, therefore, remove the disqualification for being chosen amember ofeither House of Parliament because of that person holding anoffice of profit or because of his unsoundness of mind or because of hisbeing an undischarged insaivent or because of his being not a citizen ofIndia, or because of his having voluntarily acquired the citizenship of aforeign State, or because of his being under any" acknowledgment of allegianceor adherence to a foreign State, as contemplated by sub-clauses («) to (a) ofclause (1) of Article 102 of the Constitution. The law made under clause (1)of Article 329-A would not, however, be subject to clause (<?) of clause(1) of Article 102, according to which a person shall be disqualified forbeing chosen as and for being, a member of either House of Parliament ifhe is so disqualified by or under any law made by Parliament. Accordingto clause (2) of Article 329-A, the validity of a law referred to in clause (1>and the decision. of any authority or body under such law shall not becalled in question in any court. Clause (3) provides for the abatement ofan election petition which is pending in respect of the election of any personwho is appointed as Prime Minister or chosen as Speaker of the House ofthe People during the pendency of the petition. It is further provided thatthe election of such person can be called in question under any such 4awas is referred to in clause (1) of Article 329-A. Clause (4) is the crucialclause for the present case. According to this clause no law made byParliament before the commencement of the Constitution (Thirty-ninth

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 2 1 3

Amendment) Act in so far as it relates to election petitions and matters con-nected therewith, shall apply or shall be deemed ever to have applied toor in relation to the election of any of the persons mentioned above to eitherHouse of Parliament. The remaining part of the clause deals with somefurther matters. It is provided in clause (4) that the election of the afore-said persons shall not be deemed to be void or ever to have become void onany ground on which such election could be declared to be void or has,before such commencement been declared to be void under any such law.It is further provided that notwithstanding any order made by any courtbefore the commencement of the Constitution (Thirty-ninth Amendment)Act declaring such election to be void, such election shall continue to bevalid in all respects and any such order and may finding on which such

' order is based shall be and shall be deemed always to have been void andof no effect. According to clause (5), any appeal or cross appeal againstany such order as is referred to in clause (4) pending immediately beforethe commencement of the Constitution (Thiry-ninth. Amendment) Act,before the Supreme Court shall be disposed of in conformity with the provi-sions of clause (4). Clause (6) states that the provisions of Article 329-Ashall take effect notwithstanding anything contained in the Constitution.

The proposition that the power of amendment under Article 368 doesnot enable Parliament to alter the basic structure or frame work of theConstitution was laid down by this Court by a majority of 7 to 6 in thecase of His Holiness Kesavanmtda BhaMti v. State of Kerala, [1973 Supp.S.C.R. I.] Apart from other reasons which were given in some of the judg-ments of the learned Judges who constituted the majority, the majority dealtwith the cannotation of the word "amendment". It was held that the words"amendment of the constitution" in Article 368 could not have the effectof destroying or abrogating the basic structure of the Constitution. Some ofus who were parties to that case took a different view and came to the con-clusion that the words "amendment of the Constitution" in Article 368 didnot admit of any limitation. Those of us who were in the minority inKmkvanandds case {supra) may still hold the same view as was givenexpression to in that case. For the purpose of the present case, we shallhave to proceed in accordance with the law as laid down by the majorityin that case.

§ Before dealing with*he question as to whether the impugned amend-ment affects the basic structure of the Constitution, I may make it clear thatthis Court is not concerned w;th the wisdom behind or the propriety of theimpugned constitutional amendment. These are matters essentially for thosewho are vested with the authority to make the constitutional amendment.All that this Court is concerned with is the constitutional validity of theimpugned amendment.

I may first deal with the second contention advanced by Mr. ShantiBhushan. According to him the impugned constitutional amendment andthe amending Act of 1975 were passed in sessions of Parliament whereinsome members including the respondent could not be present because theyhad been illegally detained. The fact that those measures were passed bythe requisite majority has not been questioned by the learned counsel buthe submits that if the abovemenHoned members had 'not been detained andhad not been prevented from attending the sittings of Parliament, theycould have influenced the other members and as such it is possible thatthe impugned Constitution Amendment Act and the 1975 RP amending Actmight not have been passed. Mr. Shanti Bhushan accordingly asserts that

15—345 Elec. Com./ND/81

2 1 4 SMT. INDIRA NEHRU ©*«BHI v. SHRI RAJ -NARATN [VOL. LVII

the sittings of the Houses of %rliament in which the abovementioned two-measures were passed were not legal sittings. Any measure passed in suchsittings, according to the learned counsel, cannot be considered to be avalid piece of constitutional amendment or statutory amendment.

There is, in my opinion, no force in the above submission. The proposi-tion that a member of Parliament cannot claim immunity from being de-tained under a law relating to preventive detention does not now admit ofmuch doubt. The privileges powers and the immunities of the members ofthe two Houses of Indian Parliament as well as of the Indian Legislaturesare the same as those of the members of the House of Commons as theyexisted at the time of the commencement of the Constitution. The positionabout the privileges of the members of the House of Cbmmons as if obtainedin the United Kingdom at the relevant time has bejsn stated in Erskine MaysParliamentary Practice, 18th Ed. (p. 100) as under:

"The privilege of freedom from arrest is limited tq civil causes, andhas not been allowed to interfere with the administration of crimi-nal justice or emergency legislation."

The above observations were relied upon by this Court in the case ofK. Anandan Nambiar & another V. Chief Secretary Government of Madras& others; [(1966) 2 S.CR. 406]. The petitioners in that case were membersof Parliament. They were detained by orders passed by the State Govern-ment under rule 30(1) (b) of the Defence of India Rules, 1962. They chal-lenged the validity of the orders of detention inter alia, on the ground thatrule 30(l)(6) was invalid because a legislator cannot be detained so as toprevent him from exercising his constitutional rights as legislator while thelegislative chamber to which he belongs is in session. This Court rejectedthat contention and held that the true constitutional position is that so faras a valid order of detention is concerned, a member of Parliament canclaim no special status higher than that of a ordinary citizen and thai he isas much liable to be arrested and detained under it as any other citizen.It was also held that if an order of detention validly prevents a merrrwrfrom attending a session of Parliament, no occasion would arise for theexercise by him of the right of freedom of speech.

Question as to whether a member of Parliament has been validlydetained under a law relating to preventive detention can, in my opinion, |be appropriately gone into in proceedings for a writ of habeas corpus. Suchquestion cannot be collaterally raised in proceedings like the present whereinthe court is concerned with the validity of a Constitution Amendment Actand an Act to amend the Representation of the People Act. In deciding acase before it the court should decide matters which arise directly in thecase. A court should resist the attempt of a party to induce it to decide amatter which though canvassed during arguments is only incidental andcollateral and can appropriately be dealt with in separate proceedings.

The contention advanced by Mr. Shanti Bhushan that the sittings ofthe two Houses of Parliament in which the impugned Acts were passedwere not valid essentially relates to the validity of the proceedings of thetwo Houses of Parliament. These are matters which are not justiciableand pertain to the internal domain of the two Houses. Of course, the courtscan go into the question as to whether the measures passed by Parliamentare constitutionally valid. The court cannot, however, go info trie questionas to whether the sittings of the Houses of Parliament were not constitu-tionally valid because some members of those Houses were prevented fromattending and participating in the discussions in those Houses. It has not

E.L.R.] sm- W IRA NEHRU 0®$$$ V. §$U §AJ ^ A f t ) 215

been disputed before us, as already mentioned that the impugned Constitu-tion Amendment Act and the statutory amendment Act were passed by therequisite majority. It is not the case of the respondent that the number ofthe detained members of Parliament was so large, that if they had votedagainst the impugned measures, the measures would not have been passed.Indeed, according to the affidavit filed during the course of arguments, thenumber of members of the Lok Sabha who were detained was 21 and ofthe Rajya Sabha the number was 10. An amendment of the Constitutionunder Article 368, it is noteworthy, has apart from the requirement incertain cases of ratification by the State Legislatures to be passed in eachHouse of Parliament by majority of the total membership of that House andby a majority of two-thirds of the members of that House present and voting.According to clause (1) of Article 100 of the Constitution save as otherwiseprovided in this Constitution all questions at any sitting of either House orjoint sitting of the Houses shall be determined by a majority of votes ofthe members present and voting other than the Speaker or person acting asChairman or Speaker. The Chairman or Speaker, or person acting assuch, shall not vote in the first instance, but shall have and exercise acasting vote in the case of an equality of votes. Clause (2) of that articleprovides that either House of Parliament shall have power to act notwith-standing any vacancy in the membership thereof and any proceedings inParliament shall be valid notwithstanding that it) is discovered subsequentlythat some person who was not entitled so to do sat or voted or otherwisetook part in the proceedings. Further, it is provided in clause (1) ofArticle 122 that the validity of any proceedings in Parliament shall notbe called in question on the ground of any alleged irregularity of procedure.All this would show that the framers of the Constitution were anxious toensure that the procedural irregularities and other grounds like thosementioned in clause (2) of Article 100 should not vitiate the validity ofproceedings of Parliament! and that it would not be permissible to call inquestion those proceedings on such grounds. The observations on page 456in the case of Special Reference no I of 1964 [(1965) 1 S.C.R. 413] thatif the impugned proceedings of a Legislature are illegal and unconstitutio-nal and not merely irregular, the same can be scrutinised in a court oflaw do not, in my opinion, warrant the inference %at a court can holdthe proceedings of "a Legislature to be not valid and constitutional by goinginto the question as to whether the detention of any memberwho was prevented from being present in the sitting of theLegislature on accounts of his detention was or was not inaccordance with law. The acceptance of the above submission of Mr. ShantiBhushan would necessarily result in a situation that whenever a law ismade by Parliament, it would be open to a person affected by thati lawto question the validity of that law by asking the court to examine thevalidity of detention of each of tfie members of Parliament who were underdetention at the time the said law was passed even though those membersdo not themselves assail the validity of their detention. It! is plain thatit would not be possible for the court in such collateral proceedings torecord a finding about the validity of the detention of the members becausethe full material having a bearing on the validity of the detention wouldnormally be, apart from the authority passing the order for detention, onlywith the person ordered to be detained or his friends and relatives. It wouldplainly be hazardous to record a finding without such material and a courtof lav/, in my opinion, should decline to record such a finding in collateralproceedings. Till such time as a finding is recorded in appropriate pro-ceeding about the validity of the detention of the members of Parliament,the court would have to proceed upon the assumption thai the detentionhas not been shown to be invalid.


According to clause (3) of Article 105 of the Constitution, to whicha short reference has been made earlier, the powers privileges and immu-nities of each House of Parliament, and of the members and the committeesor each House, shall be such as may from time to time be defined byParliament by law, and, until so denned shall be those of the House ofCommons of the Parliament of the United Kingdom, and of its membersand committees, at the commencement of this Constitution. No law con-templated by clause (3) has been made by the Parliament in India and assuch we have to find out the powers, privileges and immunities of theHouse of Commons in the United Kingdom at the relevant time In thecase of Bradlaugh v. Gossett [12 Q.B.D. 271 (1883-84)]. the plaintiff,,having been returned as member for the Borough of Northampton, re-quired the Speaker of the House of Commons to call him to the "table forthe purpose of taking oath. In consequence of something which hadtranspired on a former occasion the Speaker declined to do so. The Houseof Commons then upon motion resolyed "that the Serjeant-at-Arms doexclude Mr. Bradlaugh (the plaintiff) from the House until he shall engagenot further to disturb the proceedings of the House." In an action againstthe Serjeant-at-Arms praying for an injunction to restrain him from carry-ing out the resolution, the court held that this being- a matter relating tothe internal management of the procedure of the House of Commonsthe court had no power to interfere. Dealing with the rights tobe exercised with in the walls of the House Stephen, J. observedthat those rights must be dependent upon the resolution of theHouse. He also added that there was no appeal from the decision of theHouse of Commons. Stephen, J. in the course of the judgment alsoobserved:

" for the purpose of determining on a right to be exercisedwithin the House itself, and in particular the right of sitting andvoting, the House and the House alone could interpret the statutebut as regarded rights to be exercised out of and inde-pendently of the House, such as the right of suing for a penalityfor having sat and voted, the statute must be interpreted by thisCourt independently of the House."

The above passage has been cited on page 83 in Erskine May'sParliamentary Practice, 18th Edition with a view to show that it is a rightof each House of Parliament to be the sole judge of the lawfulness of itsown proceedings. It would follow from the above that the courts cannotgo into the lawfulness of the proceedings of the Houses of Parliament.

The act of detaining a person is normally that of an outside agencyand not that of the House of Parliament. It would certainly look anoma-lous if the act of an outside agency which might ultimately turn out to benot legal could affect the validity of the proceedings of the House ofParliament or could prevent that House from assembling and functioning.

The matter can also be looked at from another angle. Gazette copiesof the Election Laws Amendment Act, 1975 (Act 40 of 1975) and theConstitution (Thirty-ninth Amendment) Act, 1975 have been producedbefore us. In the face of the publication in the Gazette of the above-mentioned two Acts this Court must assume that those two Acts were d-jlypassed. It may be pertinent in this context to refer to the position in theUnited States where it was laid down in the case of Marshall Field & Co.v. John &M. Clark (143 U.S. 649) as under:

"The signing by the Speaker of the House of Representatives, and bythe President of the Senate, in open session, of an enrolled bill.


is an official attestation by the two houses that such bill haspassed Congress; and when the bill, thus attested receives theapproval of the President, and is deposited in the public archieves,its authentication as a bill that has passed Congress is completeand unimpeachable. An enrolled Act thus authenticated is suffi-cient evidence of itself that it passed Congress."

In the case of a constitutional amendment which requires ratificationby the States, the position as stated by Brandeis J. in the case of OscarLeser versus J. Mercer Garnett (66 L. Ed. 505) as follows:

"The proclamation by the Secretary certified that, from offijal docu-ments on file in the Department of State, it appeared that theproposed Amendment was ratified by the legislatures of thirty-sixstates, and that it 'has become valid to all intends and purposesas a part of the Constitution of the United States.' As the legis-lature of Tennessee and of West Virginia had power to adopt theresolution of ratification, official notice to the Secretary, dulyauthenticated, that they had done so. was conclusive upon him,and, being certified by this proclamation, is conclusive upon thecourts."

I am, therefore, of the view that the constitutional validity of theConstitution Amendment Act and the 1975 Act amending the Represen-tation of the People Act cannot be assailed on the ground that some mem-bers of Parliament were prevented because of their detention from attend-ing and participating in the proceedings of the respective Houses ofParliament.

We may now deal with clause (4) of Article 329A which has beenadded by the Constitution (Thirty-ninth Amendment) Act, 1075. It isnecessary to clarify at the outset that we are concerned in the present caseonly with the constitutional validity of clause (4) and not with that of theother clauses of that ar'icle. I, therefore, express no opinion about thevalidity of the other clauses of Article 329A. Clause (4) consists of fourparts:

(i) No law made by Parliament before the commencement of theConstitution (Thirtyjninth Amendment) Act. 1975 in so far as itrelates to the election petitions and matters connected therewithshall apply or shall be deemed ever to have applied to or in relationto the election of any such person as is referred to in clause (1)to either House of Parliament:

<ii) and such election shall not be deemed to be void or ever to havebecome void on any ground on which such election could bedeclared to be void or has before such commencement been dec-lared to be void under any such law:

(iii) and notwithstanding any order made by any court before Hichcommencement declaring such election to be void, such electionshall continue to be valid in all respects;

(iv) and any such order and any finding on which such order is basedshall be and shall be deemed always to have been void and of noeffect.

Tn so far as nart (i) is concerned, I find that it relates to a matterwhich can be the subiect of an ordinary legislation or a constitutionalAmendment According to this part, no law made by Parliament before

218 SMT. iNtrtftA MhRU GAkBiii v. SHRI RAJ mkkik [VOL. LVII

the commencement of the Constitution (Thirty-ninth Amendment) Act,1975 in so far as it relate to the election petitions and matters connectedtherewith shall apply and shall be deemed ever to have applied to or inrelation to the election of any such person as is referred to in clause (1)to either House of Parliament. A law in the above terms can validly bemade by a legislature as well as by a constituency authority. The factthat the above law would have retrospective effect would not detract fromthe competence of the legislature or constituent authority to make such alaw. It is well-settled that it is permissible for a legislature to make a lawwith retrospective effect. The power of a legislature to make a law withretrospective effect) is not curtailed or circumscribed by the fact that thesubject-matter of such retrospective law is a matter relating to an electiondispute (see State of Orissa versus Bhupendm Kumar Base [(1962) Supp.[2: 380.] and Kanta Kathuria versus Manctk Chand Snmna [(1970) 2 SCR835.] Detailed reference to these cases would be made at the appropriatestage subsequently. If a legislature can pass legislation in respect of mattersrelating to an election dispute with a retrospective effect, the constituentauthority, which in a kind of super-legislature, would a fortiori be entitledto do so.

Part (ii) of clause (4) spells outi the consequence which flows from part(i) of the clause. If the previous law in. so far as it relates to the electionpetitions and matters connected therewith was not to apply to the electionof the Prime Minister and the Speaker, it would necessarily follow that theelection of the appellant who was the Prime Minister would not be deemedto be void or ever to have become void on the ground on which suchelection could be declared to be void or has before such commencementbeen declared to be void under any such law.

The same, to some extent, appears to be true of part (iv) of clause (4).If the previous law in so far as it relates to the election petitions andmatters connected therewith was not to apply to the election of the appel-lant,, the High Court shall be deemed to have had no jurisdiction to decidethe election petition challenging the election of the appellant. The effectof part (i) of clause (4) is that the High Court was divested of the jurisdic-tion to decide the dispute relating to the election of 'he appellant with aretrospective effect. The law under which the election of the appellantwas declared to be void as a result of the amendment was also made in-applicable with retrospective effect to the dispute relating to the electionof the appellant. The resultant effect of the amendment thus was that theorder by which the election of the appellarst as declared to be void andthe finding on which such order was based were rendered to be void andof no effect.

Another aspect of part (iv) of clause (4) relates to the question as to(whether it is open to the constituent authority to declare an order and afinding of the High Court to be void and of no effect or whether _ such adeclaration can be made only either in separate judicial proceedings orin proceedings before a higher court.

A declaration that an order made by a court of law is void is normallypart of the judicial function and is not a legislative function. Althoughthere is in the Constitution of India no rigid separation of powers, by andlarge the spheres of judicial function and legislative function have beendemarcated and it is not permissible for the legislature to encroach uponthe judicial spare. It has accordingly been held that a legislature while it-is entitled to change with retrospective effect the law which tormedthe basis of the judicial decision, it is not permissible to trier

EJ..R.] SUE. INDIRA NEHRU SttgBSd v. SHRI RAJ NARA&* 219

legislature todeclare the judgment of the court to be void ornot binding (see Sri Prithvi Cotton Mills Ltd. and another verusBrooch Borough Municipality and Others [(1970) 1 S.C.R. 388 at392]; Janapada Sabha Cahindwara etc. versus The Central Provinces Svn-dicate Ltd. and another etc. [(1970) 3 S.C.R. 745 at 751]; Municipal Corpo-ration of the City of Ahmedabad etc. versus New Shorock Spinning andWeaving Co. Ltd., etc. [(1971) 1 S.C.R. 288]; and State of Tamil Nadu andanother* versus M. Rayappa Gounder [A.I.R. (1971) S.C. 231.]

The position as iti prevails in the United States, where guarantee ofdue process of law is in operation, is given on pages 318-19 of volume 46of the American Jurisprudence 2nd as under;

"The general rule is that the legislature may not destroy, annul, set-aside, vacate, reverse, modify or impair the final judgement of acourt of competent jurisdiction, so as to take away private rightswhich have become vested by the judgment. A statute attemptingto do so has been held unconstitutional as an attempt on thepart of the legislature to exercise judicial power, and as a viola-tion of the constitutional guarantee of due process of law. Thelegislature is not only prohibited from reopening cases previously

\ decided by the courts, but is also forbidden to affect the inherent^ attributes of a judgment. That the statute is under the guise of an;! Act affecting remedies does not alter the rule. It is worthy of notice,

however, that there are cases in which judgements requiring acts tobe done in the future may validly be affected by subsequent legisla-tion making illegal that which the judgment found to be legal, ormaking legal that which the judgement found to be illegal.

10. Judgment as to public right.

With respect to legislative interference with a judgment, a distinctionhas been made between public and private rights under which dis-tinction a statute may be valid even though it renders ineffectivea judgment concerning a public right. Even after a public righthas been established by the judgment of the court, it may be annuledby subsequent legislation."

Question arises whether the above limitation imposed upon the legis-lature about its competence to declare a judgment of the court to be voidwould also operate upon the constituent authority? .

View has been canvassed before us that the answer to the abovequestion should be in the negative. Although normally a declaration thatthe judgment of a court is void can be made either in separate proceedingsor in proceedings before the higher court, there is. according to this view,no bar to the constituent authority making a declaration in the constitu-tional law that such an order would be void especially when, it relates toa matter of public importance like the dispute relating to the election ofa person holding the office of Prime Minister. The declaration of the void-ness of the High Court judgment is something which can ultimately betraced to part (i) Whether such a declaration should be made by the courtor by the constituency authority ip more, it is urged, a matter of themechanics of making the declaration and would not ultimately affect thesubstance of the matter that'the judgment is declared void. According toarticle 3IB, without prejudice to the generality of the provisions containedin article 31 A, none of the Acts and Regulations specified in the Ninth

2 2 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. IVII

Schedule, nor any of the provisions thereof shall be deemed to be void,or ever to have become void, on the ground that such Act, Regulation orprovision is inconsistent with, or takes away or abridges any of the rightsconferred by, any provisions of this Part, and notwithstanding any judg-ment, decree or order of any court or tribunal to the contrary each ofthe said Acts and Regulations shall, subject to the power of any competentLegislature to repeal or amend it, continue in. force. The effect of theabove article, it is pointed out, is that even if a statute has been declaredto be void on the ground of contravention of fundamental rights by acourt of law, the moment that statute is as specified by the constituentauthority in the Ninth Schedule to the Constitution, it shall be deemed to'have got rid of that voidness and the order of the court declaring thatstatute to be void is rendered to be of no effect. It is not necessary in suchan event to make even the slightest change in the statute to rid it of itsvoidness. The stigma of voidness attaching to the statute because of con-travention of fundamental rights found by the court is deemed to bewashed away as soon as the statute is specified by the constituent authorityin the Ninth Schedule and the judgment of the court in this respect isrendered to be inoperative and of no effect. In the case of Don JohnDoughs Liyange versus The Queen (1967 A.C. 259) the Judicial Com-mittee struck down as ultra vires and void the provisions of the CriminalLaw (Special Provisions) Act, 1962 on the ground that they involved theand infringement by the legislature of the judicial powers in-consistent with the written constitution of Ceylon. Their Lordships, how-ever, expressly referred on page 287 to the fact that the impugned legislationhad Hot been passed by two-thirds majority in the manner required for anamendment of the Constitution contained in section 29(4) of the Constitu-tion. It was observed:

"There was speculation during the argument as to what the positionwould be if Parliament sought to procure such a result by firstamending the Constitution by a two-thirds majority. But sucha situation does not arise here. In so far as any Act passedwithout recourse to section 29(4) of the Constitution purports tousurp or infringe the judicial power it i.s ultra vires."

The above observations, it is urged, show that the restriction upon thelegislature in encroaching upon judicial sphere may not necessarily holdgood in the case of constituent authority.

The above contention has been controverted by Mr. S'nanti Bhushanand he submits that the limitation on the power of the legislature that itcannot declare void a judgement of the court; equally operates upon theconstituent authority. It is urged that the constituent authority can onlyenact a law in general terms, even though it be a constitutional law. Theconstituent authority may also, if it so deems proper change lhat law whichis the basis of a decision and make such change with retrospective effect,but it cannot, according to the learned counsel, declare void the judgementof the court. Declaration of voidness of a judgment, it is stated, is ajudicial act and cannot be taken over by the constituent authority. Althoughlegislatures or the constituent authority can make laws, including those forcreation of courts, they cannot, according to the submission, exercise judi-cial functions by assuming the powers of a super court in the same wayas the courts cannot act as a super legislature. It is in my opinion, notnecessary to dilate upon this aspect and express a final opinion upon therival contentions because of the view I am taking of part (iii) of clause (4).

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARMN 221

We may now come to part (iii) of clause (4). By part (Hi) it is declaredthat the election of the appellant shall continue to be valid in an respects.Such a declaration would now follow from part (i) of the clause. It wouldnot also follow from part (ii) and part (iv) of the clause which, as men-tioned earlier, in effect represented the consequences flowing from part (i).The election to the Lok Sabha of the appellant, who was the PrimeMinister, was challenged on the ground that she or her election agents hadbeen guilty of some mcd practices. The declaration that her election wasto be valid in all respects necessarily involved the process of going intothe grounds on which her election had been assailed and holding thosegrounds to be either factually incorrect or to be of such a nature as in lawdid not warrant the declaration of her election to be void. The case ofthe appellant) is that some of the grounds mentioned against her werefaciuaJiy incorrect and in respect of those grounds the finding of the HighCourt is against the respondent and in her favour. In respect of someother grounds, except in one or two matters there is not much divergencebetween the appellant and the respondent on the question of facts. The pointof controversy between the parties mainly is that, according to the respon-dent, chose facts constituted corrupt practice as defined in section 123 ofthe R. P. Act, while according to the appellant those facts did not cons-titute corrupt practice. In any case, according to the appellant, in view ofthe amendment made in the R. P. Act by amending Acts 58 of 1974 and40 of 1975, these facts did not constitute corrupt practice. The declarationmade in part (iii) of clause (4) that the election of t,he appellant was to bevalid in all respects was tantamount in the very nature of things to therepelling of the grounds advanced by the respondent to challenge the elec-tion of the appellant. Question therefore arises as to what, if any, wasthe law which was applied in repelling the grounds advanced by the res-pondent to challenge the election of the appellant, so far as theexisting law relating to election disputes was concerned, part (i)of clause (4) expressly stated that such a law would not apply tothe petition filed by the respondent to challenge the election of theappellant. This means that the provisions of the Representation of thePeople Act were not to apply to the petition filed by the respondent againstthe appellant. This also means that the amending Acts 58 of 1974 and 40of 1975 were not to apply to the dispute relating to election of the appellant.

The dispute relating to the election of the appellant is also not to begoverned by law which is to be enacted under clause (1) of article 329A.Such a law would apply only to future elections. The result is that so faras the dispute relating to the election of the appellant is concerned a legalvacuum came into existence. It was open to the constituent authority tofill that vacuum by prescribing a law which was to govern the disputearising out of the petition filed by the respondent to challenge the electionof the appellant. The constituent authority, however, did not do so andstraight away proceeded Dfl declare the election of the appellant to be valid.There is nothing in clause (4) to indicate that the constituent authorityapplied any law in declaring the election of the appellant to be valid andif so, whati was that law.

I am unable to accede to the argument that the constituent authoritykept in view the provisions of the R. P. Act as amended by Acts 58 of1974 and 40 of 1975 and their impact on the challenge to the election ofthe appellant in declaring the election of the appellant to be valid. Thedifficulty in accepting this argument is that in part (i) of clause (4) theconstituent authority expressly stated that the previous law, namely, theR. P. Act as amended in so far as it related to election petitions and

222 S**f. INBIR* NfHR'u tJANttfli V. StiRi &Ai NARAIN [VOL. LVII

connected herewith was not to apply so far as the challenge tothe election of the appellant was concerned. It is also difficult to agreethat the constituent authority took into account some other unspecified lawor norm in declaring the election of the appellant to be valid. As mention-ed earlier, there is nothing in clause (4) to indicate that the constituentauthority took into account some other law or norm and if so, what thatlaw or norm was. The position which, thus emerges is that according toclause (4) no law was to apply for adjudicating upon the challenge \o theelection of the appellant and the same was in terms of part (iii) to be validin all respects. The question with which we are concerned is whe'her theprovisions of clause (4) of article 329A by which the constituent authorityin effect prescribed that no election law was to govern the challenge tothe election of the appellant and that the same in any case was to bevalid in all respects is a permissible piece of constitutional amendment orwhether it is void on the ground tlhat it affects the basic structure of theConstitution.

This Court in the case of Kesavwxanda Bharafi (supra) held bymajority that the power of amendment of the Constitution contained inarticle 368 does not permit altering the basic structure of the Constitution.All the seven Judges who constituted the majority were also agreed thatdemocratic set up was part of the basic structure of the Constitution. Demo-cracy postulates that there should be periodical elections so that peoplemay be in a position either to re-elect the old representatives or, if theyso choose, to change the representatives and elect in their place other re-presentatives. Democracy further contemplates that the elections should befrete and fair, so that the voters may be in a position to vote for candidatesqf their choice. Democracy can indeed function only upon the faith thatelections are free and fair and not rigged and manipulated, that they areeffective instruments of ascertaining popular will both in reality and formand are not mere rituals calculated to generate illusion of deference tomass opinion. Free and fair elections require that the candidates and theiragents should not resort to unfair means or malpractices as may impingeupon the process of free and fair elections. Even in the absence of unfairmeans and malpractices, sometimes the result of an eledSon is materiallyaffected because of the improper rejection of ballot papers. Likewise, theresult of an election may be materially affected on account of the improperrejection of a nomination paper. Disputes, therefore, arise with regard tothe validity of elections. For the resolving of those disputes, the differentdemocratic countries of the world have made provisions prescribing thelaw and the forum for the resolving of those disputes. To give a fewexamples, we may refer to the United Kingdom where a parliamentaryelection petition is tried by two Judges on the rota for the trial of parlia-mentary election petitions in accordance with the Representation of thePeople Act, 1949/ Section 5 of article 1 of the JJ. S. Constitution providesthat each House (Senate and the House of Representatives) shall be thejudge of the elections, returns and qualifications of its own members.Section 47 of the Australian Constitution provides that until the Parliamentotherwise provides, any question respecting the qualification of a senatoror a member of the House of Representatives, or respecting a vacancy ineither House or Parliament, and any question of a disputed election toeither House, shall be determined by the House in which the questionarises. Article 55 of the Japanese Constitution states that each house shalljudge disputes related to qualifications of its members. However, in orderto deny a seat to any member, it is necessary to pass a resolution by^amajority of two-thirds or more of the member present. Article 46 of tneIceland Constitution provides that the Althing itself decides whether its

E.L.R.] SMT. INDIRA NEHRU 0ANBHT V: SHRI ftAJ NJIRiMN 2 2 3

members are legally elected and also whether a member is disqualified.Article 64 of the Norwegian Constitution states that the representativeselected shall be ftirriished- with certificates, the validity of which shall besubmitted to the judgment of the Storting. Article 59 of the French Cons-titution provides that the Constitutional Council shall rule, in the case ofdisagreement, on the regularity of the election of deputies and senators.Article 41 of the German Federal Republic Constitution states that the scru-tiny of elections shall be the responsibility of the Bundestag. It shall alsodecide whether a deputy has lost his seat in the Bundestag. Against thedecision of the Bundestag an appeal shall lie to the Federal ConstitutionalCourt. Details shall be regulated by a federal law. According to article 66of the Italian Constitution, each Chamber decides as to the validity of theadmission of its own members and as to cases subsequently arising concern-ing ineligibility and incompatibility. In Turkey article 75 provides inter aliathat it shall be the function of Supreme Election Board to review and passfinal judgment on all irregularities, complaints and objections regardingelection matters during and after elections. The functions and powers ofthe Supreme Election Board shall be regulated by law. Article 53 of theMalayasian Constitution provides that if any question arises whether memberof a House of Parliarnet has become disqualified for membership, thedecision of that House shall be taken and shall be final.

Not much argument is needed to show that unless there be a machineryfoi" resolving an election dispute and for going into the allegations thatelections were not free and fair being vitiated by malpractices the provisionthat a candidate should not resort to malpractices would be in the natureof a mere pious wish without any legal sanction. It is further plain that ifthe validity of the election of a candidate is challenged on some grounds,the said election can be declared to be valid only if we provide a forum forgoing into those grounds and prescribe a law for adjudicating upon thosegrounds. If the said forum finds that the grounds advanced to challengethe election are not well-founded or are not sufficient to invalidate the elec-tion in accordance with the prescribed law or dismisses the petition tochallenge the election on some other ground, in such an event it can besaid that the election of the returned candidate is valid.

Besides other things, election laws lay down a code of conduct inelection matters and prescribe, what may be called, rules of electoral mora-lity. Election laws also contain a provision for resolving disputes anddetermination of controversies which rriust inevitably arise in election mattersas they arise in other spheres of human activity. The object of such aprovision is to enforce rules of electoral morality and to punish deviancefrom the prescribed code of conduct in election matters. It is manifest thatbut for such a provision, there would be no sanction for the above code ofconduct and rules of electoral morality. It is also plain that nothing wouldbring the code of conduct into greater contempt and makes a greater moc-kery of it than the absence of a provision to punish its violation. The posi-tion would become all the more glaring that even though a provision existson the statute book for punishing Violation of the code of conduct in elecfionmatters, a particular election is made immune and granted exemption fromthe operation of such a provision:.

The vice of clause (4) of article 32.9A is not merely that it makes theprevious law contained in the R. P. Act as amended by Acts 58 of 1974anl 40 of 1975 inapplicable to the challenge to the election of the appellant,it also makes no other election law applicable for resolving that dispute.The further vic6 from which the said clause suffers is that it not merely


divests the previous authority, namely, the High Court of its jurisdiction todecide the dispute relating to the election of the appellant, it confers no juris-diction on some other authority to decide that dispute. Without even pres-cribing a law and providing a forum for adjudicating upon the grounds ad-vanced by the respondent to challenge to election of the appellant, theconstituent authority has declared the election of the appellant to be valid.

To confer an absolute validity upon the election of one particular can-didate and to prescribe that the validity of that election shall not be ques-tioned before any forum or under any law would necessarily have the effectof saying that howsoever gross may be the improprieties which might havevitiated that election, howsoever flagrant may be the malpractices whichmight have been committed on behalf of the returned candidate during thecourse of the election and howsoever foul and violative of the principles offree and fair elections may be the means which might have been employedfor securing success in that election, the said election would be nonethelessvalid and it would not bs permissible to complain, of those improprieties,malpractices and unfair means before any forum or under any law with aview to assail the validity of that election. Not much argument is neededto show that any provision which brings about that result is subversive ofthe principle of free and fair election in a democracy. The fact that thecandidate concerned is the Prime Minister of the country or the Speaker ofthe lower House of Parliament would, if anything, add force to the aboveconclusion because both these offices represent the acme of the democraticprocess in a country. That in fact the elections of the incumbents of thetwo offices were not vitiated by any impropriety, malpractice or unfairmeans is not relevant or germane to the question with which we are con-cerned, namely, as to what is the effect of clause (4) of article 329A.

The vice of declaration contained in part (iii) of clause (4) regardingthe validity of the election of the appellant is aggravated by the fact thatsuch a declaration is made after the High Court which was then seized ofjurisdiction had found substance in some of the grounds advanced by therespondent and had consequently declared the election of the appellant tobe void. To put a stamp of validity on the election of a candidate bysaying that the challenge to such an election would not be governed by anyelection law and that the said election in any case would be valid &ndimmune from any challenge runs counter to accepted norms of free andfair elections in all democratic countries. In the case of Marbury v. Madison[1 Cr. 137, 163 (1803)], Marshall, C.J. said that "the Government of theUnited States has been emphatically termed a Government of laws and notof men." In United States V. Lee (106 U.S. 196, 220), Samuel Miller, J.,observed that "no man is so high that he is above, the law Allofficers are creatures of the law and are bound to obey it." Although theabove observations were made in the context of the U. S. Constitution,they, in my opinion, hold equally good in the context of our Constitution.

It has been argued on behalf of the appellant that the grounds on ac-count of which the election of the appellant had been held to be void bythe High Court were of a technical nature. I need not express any opinionabout this aspect of the matter at this stage but, assuming it to be ?o, Ifind that clause (4) of article 329A is so worded that however serious maybe the malpractices vitiating the election of the Speaker or the PrimeMinister, the effect of clause (A) is that the said election would have to betreated as valid. T cannot accede to the submission that in construingclause (4) we should take into account the facts of the appellant's case.This is contrary to all accepted norms of construction. If a clause of a

E.L.R.] SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN 225

Constitution or statutory .provision is widely worded, the width of its ambitcannot be circumscribed by taking into account the facts of an individualcase to which it applies. As already mentioned, clause (4) deals with thepast election not merely of the Prime Minister but also of the Speaker Sofar as the election of the Speaker is concerned, we do not know as to whetherthe same was ever challenged and, if so, on what grounds and whether sucha dispute is still pending.

Another argument advanced in support of the validity of the amend-ment is that we should take it that the constituent authority constituteditself to be the forum for deciding the dispute relating to the validity of theelection of the appellant, and after considering the facts of the case, dec-lared the election of the appellant to be valid. There is, however, nothingbefore us as to indicate that the constituent authority went into the' raaferia]which had been adduced before the High Court relating to the validity ofthe election of the appellant and after considering that material held theelection of the appellant to be valid. Indeed, the statement of Obiects andReasons appended to the Constitution (Thirty-ninth Amendment) Bill makesno mention of this thing. In any case, the vice of clause (4) would stilllie in the fact that the election of the appellant was declared to be validon the basis that it was not to be governed by any law for settlement ofelection disputes. Although the provisions of a constitutional amendmentshould be construed in a fair and liberal spirit, such liberal spirit shouldnot be carried by the court to the extent of discovering the application of adormant and latent law in the declaration of the validity of an election eventhough there is not even a remote indication of such a law in the impugnedprovision. Rule of law postulates that the decisions should be made bythe application of known principles and rules and in general such decisionsshould be predictable and the citizen should know where he is. If a deci-sion is taken without any principle or without any rule, it is not predictableand such decision is the antithesis of a decision taken in accordance with therule of law.

The matter can also be looked at from another angle. The effect ofimpugned clause (4) is to take away both the right and the remedy tochallenge the election of the appellant. Such extinguishment of the rightand remedy to challenge the validity of the election, in my opinion, isincomparable with the process of free and fair elections. Free and fairelections necessarily postulate that if the success of a candilate is securedin elections by means—which violate the principle of free and fair elections,the election should on that account be liable to be set aside and be declaredto be void. To extinguish the right and the remedy to challenge the validityof an election would necessarily be tantamount to laying down that evenif the election of a candidate is vitiated by the fact that it was secured byflagrant violation of the principles of free and fair election, the same wouldstill enjoy iminuity from challenge and would be nonetheless valid. Clause(4) of article 329-A can, therefore, be held to strike at the basis of freeand fair elections.

I agree that it is not necessary in a democratic set up that disputesrelating to the validity of the elections must be settled by courts of law.There 'are many countries like France, Japan, and the United States ofAmerica where consistently with the democratic set up the determinationof such controversies is by legislatures or by authorities other than thecourts. The question with which we are concerned, however, is whether itis permissible in a democratic set up that a dispute with regard to thevalidity of a particular election shall not be raised before any forum and

M& fMT. INBiRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LV1I

shall not be governed by law and whether such an election can be declared,despite the existence of a dispute relating to' its validity^ to be valid bymaking the existing law relating to election disputes not applicable to jt andalso by not applying any other election law to such a dispute. The answerto such a question for the reasons given earlier, by me, should be in thenegative.

Reference to the election of the U. P. President made by Mr. Sen isalso not helpful to him. It is clear from observations on pages 47—50 ofthe American Commonwealth by Bryce 1912 Ed. and sections 5, 6 and 15of the United States Code (1970 Ed.) that there is ample provision for thedetermination of such disputes after the poll. The fact that such determi-nation of the dispute is before the declaration of the result would not detractfrom the position that it is essential for free and fair elections that thereshould be a forum and law for the settlement of such disputes relating to 'hevalidity of the election.

Argument has also been advanced that the offices of the Prime Ministerand Speaker are of great importance and as such they constitute a classby themselves. This argument, in my opinion, would have relevance ifinstead of the law governing disputes relating to the election of o'herpersons, another law had been prescribed to govern the dispute relating tothe election of a person who holds the office of the Prime Minister orSpeaker. As it is, what we find is that so far as the dispute relating to theelection of the appellant is concerned, neither the previous law governingthe election of persons holding the office of the Prime Minister is to applyto it nor the future law to be framed under clause (1) of Article 329-Agoverning the election of persons holding the office of Prime Minister is toapply to this dispute. Likewise, the previous forum for adjudicating uponthe election dispute which went into the matter has been divestedof its jurisdiction with restrospective effect and, at the sametime, no jurisdiction has been vested in any other forum to go into thematter. The present is not a case of change of forum. It is, on the con-trary, one of the abolition of forum. As such, the question as to whetherthe office of Prime Minister constitutes a class by itself loses much of itssignificance in the context of the controversy with which we are concerned.

It has been argued in support of the constitutional validity of clause (4)that as a result of this amendment, the validity of one election has beenpreserved. Since the basic structure of the Constitution, according to thesubmission, continues to be the same, clause (4) cannot be said to be animpermissible piece of constitutional amendment. The argument has aseeming plausibility about it, but a leeper reflection would show that it isvitiated by a basic fallacy. Law normally connotes a rule or norm whichis of general application. It may apply to all the persons or class of personsor even individuals of a particular description. Law prescribes the abstractprinciples by the application of which individual cases are decided. Law,however, is not what Blackstone called "a sentence". According to RoscoePound, law, as distinguished from laws, is the system of authorita;ivematerials for grounding or guiding judicial and administrative action recog-nized or established in a politically organized society (see page 106, Juris-prudence, Vol. III). Law is not the same as judgment. Law lays down thenorm in abstract terms with a coercive power and sanction against theseguilty of violating the norm, while judgment represents the decision arrivedat by the application of law to the concrete facts of a case. Constitutionallaw relates to the various organs of a State: it deals with the structure ofthe government, the extent of distribution o% its powers and the modes and

J8X.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 2 2 7

principles of its operation. The Constitution of India is so detailed thatsome of the matters which in a brief constitution like that of the UnitedStates of America are dealt with by statutes form the subject-matter ofvarious articles of our Constitution. There is, however, in a constitutionallaw, as there is in the very idea of law, some element 01 generality or generalapplication. Jt also carries with it a concept of its applicability in futureto situations which may arise in that context. If there is amendment of someprovision of the Constitution and the amendment deals with matters whichconstitute constitutional law in the normally accepted sense, the court whiledeciding the question of the valility of the amendment would have tofind out, in view of the majority opinion in Keshavananda Bharati's case(supra), as to whether the amendment affects the basic structure of theConstitution. The constitutional amendment contained in clause (4) withwhich we are concerned in the present case is however, of an altogetherdifferent nature. Its avowed object is to confer validity on the election ofthe appellant to the Lok Sabha in 1971 after that election had been declaredto be void by the High Court and an appeal against the judgment of theHigh Court as pending in this Court. In spite of our query, we are notreferred to any precedent of a similar amendment of any Constitution ofthe world. The uniqueness of the impugned constitutional amendmentwould not, however, affect its validity. If the constituent authority in itswisdom has chosen the validity of a disputed election as the subject-matterof a constitutional amendment, this Court cannot go behind that wisdom.All that this Court is concerned with is the validity of the amendment. Ineed not go into the question as to whether such a matter, in view of thenormal concept of constitutional law, can strictly be the subject of a consti-tutional amendment. I shall for the purpose of this case assume that sucha matter can validly be the subject-matter of a constitutional amendment.The question to be decided is that if the impugned amendment of theConstitution violates a principle which is part of the basic structure of theConstitution, can it enjoy immunity from an attack on its validity becauseof the fact that for the future, the basic structure of the Constitution remainsunaffected. The answer to the above question, in my opinion, should be inthe negative. What has to be seen in such a matter is whether the amend-ment contravenes or runs counter to an imperative rule or postulate which isan integral part of the basic structure of the Constitution. If so it wouldbe an impermissible amendment and it would make no difference whetherit relates to one case or a large number of cases. If an amendment strikingat the basic structure of the Constitution is not permissible, it would notacquire validity by being related only to one case. To accede to the argu-ment advanced in support of the validity of the amendment would be tanta-mount to holding that even though it is. not permissible to change the basic,structure of the Constitution, whenever, the authority concerned deems itproper to make such an amendment, it can do so and circumvent the bar tothe making of such an amendment by confining it to one case. What is pro-hibited cannot become permissible because of its being confined to onematter.

Lastly, question arises whether we should strike down clause (4) in itsentirety or in part. So far as this aspect is concerned, I am of the viewthat the different parts, of clause (4) are so integrally connected and linkedwith each other that It is not possible to sever them and uphold the validityof part of it after striking down the rest of it. It would indeed be unfair tothe appellant if we were'to uphold the first part of clause (4) and strikedown other parts or even part (iii). As would be apparent from whatfollows hereafter, the election of the appellant is being upheld by applyingthe provisions of the R. P. Act as amended by Act 40 of 1975. Such a

2 2 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVH

course would not be permissible if we were to uphold the validity of thefirst part of clause (4) and strike down the other parts. We would also inthat event be creating a vacuum which is the very vice for which we are •striking down clause (4). I am, therefore, of the view that clause (4) shouldbe struck down in its entirety.

In view of my finding that clause (4) strikes at the basic structureof the Constitution, it is not necessary to go into the question as to whetherassuming that the constituent authority took it upon itself to decide thedispute relating to the validity of the election of the appellant, it was neces-sary for the constituent authority to hear the parties concerned before itdeclared the election of the appellant to be valid and thus in effect rebelledthe challenge of the respondent to the validity of the appellant's election.

As a result of the above, I strike down clause (4) of Article 320-A onthe ground that it violates the principle of free and fair elections wiiich isan essential postulate of democracy and which in its turn is a patt of thebasic structure o£ the Constitution inasmuch as (1) it abolishes the forumwithout providing for another forum for going into the dispute relating to _the validity of the election of the appellant and further prescribes that thesaid dispute shall not be governed by any election law and that the validityof the said election shall be absolute and not consequently be liable to beassailed, and (2) it extinguishes both the right and, the remedy to cha-lenge "the validity of the aforesaid election.

We may now deal with appeal no. 887 of 1975 filed by the appellant.So far as this appeal is concerned, it has been argued by Mr. Sen on behalfof the appellant that the grounds or which the election of the appellant hasbeen declared by the High Court to be void no longer hold good in viewof the amendment in the R. P. Act by Act 40 of 1975. As again i that,Mr. Shanti Bhushan on behalf of the respondent has assailed the validity ofAct 40 of 1975 were to be upheld, the grounds on which the election cf theappellant has been declared to be void would still hold good.

The question as to whether Act 40 of 1975 is not vitiated by any cons-titutional infirmity would be dealt with by me subsequently. For the timebeing I would proceed upon the basis that the statutory amendment in the .R. P. Act by Act 40 of 1975 is constitutionally valid.

Section 10 of Act 40 of 1975, which has been reproduced earlier, makesit clear inter alia, that the provisions of sections 6, 7 and 8 of that Act shallhave retrospective operation, so as to apply to or in relation to any electionheld before the commencement of this Act, to either House of Parliamentin respect of which appeal from any order of anv High Court made in anyelection petition under the Representation of the People Act is rendingbefore the Supreme Court immediately before such commencement. Tt is,therefore, obvious that the provisions of sections 6, 7 and 8 of Act 40 of1975 would be attracted to this case. One of the questions which actuallyarose for determination before the High Court was as to what was the dateon which the appellant held herself out as a candidate. According to thewritten statement filed on behalf of the appellant, she held herself out asa candidate from the Rae Bareli constituency on February 1, 1971, whenshe, filed her nomination paper. As against that, the case of the respondentwas that the appellant held herself out as a candidate from that constituencyon 27th December, 1970 when the Lok Sabha was dissolved. The findingof the High Court is that the appellant held herself out as a candidate fromthe Rae Bareli constituency on 29th December, 1970 when she addressed aPress conference. The question as to when the appellant held herself out


as a candidate from the Rae Bareli constituency has now become purelyacademic in view of the change in the definition of the word "candidate"as given in clause (b) of section 79 of the Representation of the People Actby Act 40 of 1975. According to the original definition, "unless the contextotherwise requires, 'candidate' means a person who has been or claims tohave been dulv nominated as a candidate at any election and any suchperson 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 prospectivecandidate". The new definition states that "unless the context otherwiserequires, 'candidate' means a person who has been or claims to have beenduly nominated as a candidate at any election". The question as to whena person holds himself out as candidate, therefore, loses its importance inthe context of the new definition.

One of the grounds which weighed with the High Court m declaringthe election of the appellant to be void was that the appellant coramittedcorrupt practice under section 123(7) of the Representation of the PeopleAct inasmuch as she obtained and procured the assistance, for the fur-therance of her election prospects of Yashpal Kapur during the period fromJanuary 7 to 24, 1971 when Yashpal Kapur was still a gazetted officer inthe service of the Government of India.

According to clause (7) of section 123 of the Representation ofthe Peopla Act. the following act shall constitute corrupt practice under .that clause:

"The obtaining or procuring or abetting or attempting to obtain orprocure by a candidate or his agent, or, by any other person withthe consent of a candidate or his election agent, any assistance(other than the giving of vote) for the furtherance of the prospectsof that candidate's election, from any person in the service of theGovernment and belonging to any of the following classes, namely:(a) gazetted officers;(b) stipendiary judges and magistrates;(c) members of the armed forces of the Union;(d) members of the police forces;(e) excise officers;(/) revenue officers other than village revenue officers known as

lambardars, malguzars, deshmukhs or by any other name,whose duty is to collect land revenue and who are remuneratedby a share of, or commission on, the amount of land revenuecollected by them but who do not discharge any policefunction; and

(g) such other class of persons in the service of the Government",as may be prescribed.

Explanation.—(1) In this section the expression '«gent' includesan election agent, or polling agent and any person who is heldto have acted as an agent in connection with the consent ofthe candidate.

(2) For the purposes of clause (7), a person shall be deemed toassist in the furtherance of the prospects of a candidate'selection if he acts as an election agent."

16—345 Elec. Com./ND/81

2 3 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NAR4IN [VOL. LVII

Perusal of the above clause shows that what constitutes corrupt practiceunder the above clause is the obtaining or procuring or abetting or attempt-ing to obtain or procure by a candidate or his agent or " by anyperson with the consent of a candidate or his election agentany assistance (other than the giving of vote) for the furtherance of theprospects of the candidate's election from any person in the service of theGovernment and belonging to any of the classes specified therein. It is,in my opinion, essential that at the time the impugned act, namely, theobtaining or procuring or abetting. or attempting to obtain or procure theassistance of a Government servant is done, the person doing th-5 act mustbe a candidate or his agent or any other person with the consent ot acandidate or his election agent. Candidate in this clause would mean aperson who has been or who claims to have been duly nominated as acandidate at the election. I am unable to accede to the submission otMr. Shanti Bhushan that the word "candidate" has been used merely +oidentify the person who is duly nominated as a candidate at an election andthat the word "candidate", as mentioned in clause (7), would a]so includea person who, after the commission of the corrupt practice specified in thatclause, is subsequently nominated as a candidate. The amended definitionreproduced above shows that unless context otherwise requires candidatemeans a person who has been or claims to have been duly nominated as acandidate at an election. To accede to the submission of Mr. ShantiBhushan would be tantamount to reading in the definition of the word"candidate" in addition to the words "who has been or claims to havebeen duly nominated" also the words "who is subsequently nominated asa candidate". There is nothing to indicate that the word "candidate" inclause (7) of section 123 has been used merely to identify the person whohas been or would be subsequently nominated as a candidate. A definitionclause in a statute is a legislative device with a view to avoid makingdifferent provisions of the statute to be cumbersome. Where a word isdefined in the statute and that word is used in ai provision to which thatdefinition is applicable, the effect is that wherever the word defined is usedin that provision, the definition of the word gets substituted. Reading theword "candidate" in section 123(7) of the Representation of the People Actin the sense in which it has been defined as a result of the amendment madeby Act 40 of 1975, I find that the only reasonable inference is that theperson referred to as a candidate in that clause should be a person whohas been or claims to have been duly nominated as a candidate at anelection and not one who is yet to be nominated.

Mr. Shanti Bhushan has invited our attention to clause (b) of section100(1) of the Representation of the People Act wherein it is stated thatsubject to the provisions of sub-section (2) of the section if the High Courtis of the opinion that any corrupt practice has been committed by a returnedcandidate or his election, agent or by any other person with the consent ofa returned candidate or his election agent, the High Court shall declare theelection of the returned candidate to be void. "Returned candidate" hasbeen defined in clause (f) of section 79 to mean, unless the context otherwiserequires, a candidate whose name has been published under section 67 asduly elected. It is urged that as the corrupt practice referred to in clause (b)of section 100(1) of the Representation of the People Act would in the verynature of things have to be committed by the returned candidate before hisname was published under section 67 as duly elected, the words "returnedcandidate" in clause (b) of section 100(1) must be taken to have be-n usedwith a view to identify the person who subsequently became a returnedcandidate. It is urged that if while dealing with corrupt practice committed

I.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN 231

by a candidate before he became a returned candidate in the context ofsection r00(l)(6), it is permissible to hold that the words "returned candidate"are intended to identify the person who subsequently became a returnedcandidate, the same criterion should apply when construing the word"candidate" in section 123 of the Representation of the People Act. Thiscontention, in my opinion, is devoid of force. The definition of the words

• "'returned candidate" and "candidate" given in section 79. of the Represen-tation of the People Act are preceded by the words "unless the contextotherwise requires". The connotation of the above words is that normallyit is the definition given in the section which should he applied and giveneffect to. This normal rule may, however, be departed from if there besomething in the context to show that the definition should not be applied.So far as clause {b) of section 100(1) is concerned, the context plainly re-quires that the corrupt practice referred to in that clause should have beencommitted by the candidate before he became a returned candidate, or byhis agent or by any other person with his consent or that of his electionagent. The compulsion arising from the context which is there in clause (/>)of section 100(1) of the Representation of the People Act is singularilyabsent in section 123(7) of the Representation of the People Act. There isnothing in the context of the latter provision which requires that we shouldnot give full effect to the new definition of the word "candidate".

Reference has also been made by Mr. Shanti Bhushan to observationson pages 222-3 of Vol. 14 of Halsbury's Laws of England, Third Edition,according to which a candidate at a general election may be guilty cf treatingeven though the treating took place before the dissolution of the Parliamentand consequently before he came within the statutory definition of acandidate. These observations have been made in the context of the statu-tory provisions in the United Kingdom. Those provisions were couched in

_ a language substantially different from that in which the provisions of theRepresentation of the People Act in India are couched and as such, in myopinion, not much assistance can be derived from those observations.

As the appellant filed her nomination paper on February 1, 1971, inview of the amended definition of the word "candidate", it would, have tobe taken that the appellant became a candidate only on February 1, 1971.The result is that even if the finding of the High Court that the appellantobtained and procured the assistance of Yashpal Kapur during the periodfrom January 7 to 24, 1971 were assumed to be correct, the appellant shallnot be deemed to have committed corrupt practice under section 123(7) ofthe Representation of the People Act. As regards the assistance of YashpalKapur which the appellant is alleged to have obtained and procured afterTanuary 14, 1971, the controversy stands resolved also by another amend-ment. According to the case of the appellant Yashpal Kapur tendered hisresignation by letter dated January 13, 1971 with effect from January 14,1971. The High Court found that Yashpal Kapur continued to be in theservice of the Government of India till January 25, 1971 which was the dateof the notification regarding the acceptance of Yashpal Kapur's resignation.According to the said notification, the President was pleased "to accept theresignation of Shri Y. P. Kapoor, Officer on Special Duty in the PrimeMinister's Secretariat, with effect from the forenoon of the 14th January,1971." The explanation which has been added to section 123 of the Re-presentation of the People Act makes it clear, inter alia, #that for thepurpose of clause (7). notwithstanding anything contained in any other law,the publication in the official Gazette of the resignation and termination ofservice of a person in the service of the Central Government shall be


conclusive proof of his resignation and termination of service and where thedate of taking effect of his resignation or termination of service is statedin such publication, also of the fact that such person ceased to be in suchservice with effect from the said date. Yashpal Kapur in view of thenewly added explanation, shall be taken to have ceased to be in Govern-ment service with effect from January 14, 1971. Any assistance of YashpalKapur which the appellant was alleged to have obtained or procured onor after January 14, 1971 would not therefore, make her guilty of corruptpractice under section 123(7) of the Representation of the People Act.

Another ground on which the High Court declared the election of theappellant to be void was that she committed corrupt practice under section123(7) of the Representation of the People Act inasmuch as she obtainedthe assistance of the officers of the U. P. Government, particularly theDistrict Magistrate, Superintendent of Police, the Executive Engineer,P. W. D. and the Engineer, Hydel Department for construction of rostrumsand arrangement of supply of power for loudspeakers in the meetingsaddressed by her on February 1, 1971 and February 25, 1971 in furtheranceof her election prospects. It is not disputed that what was done by theabovementioned officers was in pursuance of official directions and in thedischarge or purported discharge of the official duties. This is indeed clearfrom letter dated November 19, 1969 from the Government of India,Ministry of Home Affairs to all State Governments wherein there isreference to rule (6) of the Rules and Instructions for the Protection of thePrime Minister and it is stated:

"As the security of the Prime Minister is the concern of the State allarrangements for putting up the rostrum, the barricades etc. atthe meeting place, including that of an election meeting will haveto be made by the State Government concerned

In the case of electionmeetings, all expenditure on police, setting up of barricades andtaking lighting arrangements will be borne by the State Govern-ment while expenditure on the public address! system and anydecorative arrangements will be the responsibility of the politicalparty concerned. (The expenditure on all these items, may in thefirst instance be borne by the State Government and then recoveredfrom the political parties concerned). In regard to the rostrumonly 25 per cent of the cost of the rostrum or Rs. 2,500 whicheveris less, shall be contributed by the party as the rostrum has to b>-of certain specifications because of security considerations.'

Assuming that the finding of fact recorded by the High Court in this respectis correct, the appellant can still be not guilty of the commission of corruptpractice under section 123(7) of the Representation of the People Act inview of the new proviso which has been inserted at the end of clause (7)of section 123 and which reads as under:

"Provided that where any person, in the service of the Governmentand belonging to any of the classes aforesaid, in the discharge orpurported discharge of his official duty, makes any arrangementsor provides any facilities or does any other act or thing, for, toor in relation to any candidate or his agent or any other personacting with the consent of the candidate or his agent or any other

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person acting with the consent of the candidate or his electionagent (whether by reason of the office held by the candidate orfor any other reason), such arrangements, facilities or act or thingshall not be deemed to be assistance for the furtherance of theprospects of that candidate's election."

The above proviso has also a direct bearing on the allegation of the res-pondent that the appellant committed corrupt practice under section 123(7)of the Representation of the People Act inasmuch as she or her electionagent procured the assistance of members of armed forces of the Unionfor furtherance of her election prospects because of the fact that themembers! of the armed forces arranged planes and helicopters of the AirForce for her flights to enable her to address meetings in her constituency.

It has been argued by Mr. Shanti Bhushan that the words "in the dis-charge or purported discharge of his official duty" in the above-mentionedproviso have reference only to statutory duty and not to other duty per-formance of which takes place in pursuance of administrative instructions.I find it difficult to accede to the above submission as there is nothing inthe above proviso to confine the words "official duty" to duty imposed bystatute. Official duty would include not merely duties imposed by statutesbut also those which have to be carried out in pursuance of administrativeinstructions.

Mr. Shanti Bhushan during the course of arguments made it plain thatapart from his submission with regard to the validity of Act 40 of 1975, hisobjection relating to the applicability of Act 40 of 1975 was confined totwo matters, namely, the connotation of the word "candidate" and themeaning to be attached to official duty. Both these objections have beenfound by me to be not tenable. I would, therefore, hold that subject tothe question as to whether the provisions of Act 40 of 1975 are valid, thegrounds on which the High Court has declared the election of the appellantto be void no longer hold good for declaring the said election to be void*

We may also before dealing with the validity of Act 40 of 1975 referto one other change brought about by that Act which has a bearing uponthe present case. It was the case of the respondent that the appellant andher election agent made extensive appeals to the religious symbol of cowand calf and thereby committed corrupt practice under section 123(3) of theR. P. Act. Corrupt practice has been defined in that provision as under:

"(3) The appeal by a candidate or his agent or by any other personwith the consent of a candidate or his election agent to vote orrefrain from voting for any person on the ground of his religion,race, caste, community or language or the use of, or appeal toreligious symbols or the use of, or appeal to, national symbols,such as the national flag or the national emblem, for the furtheranceof the prospects of the election of that candidate or for prejudi-cially affecting the election of any candidate."

It is the comntbn case of the parties that the symbol of cow and calf wasallotted to the Congress party by the Election Commission. The learnedcounsel for the respondent stated during the course of arguments in theHigh Court that he confined his case only to the use of the symbol of cowand calf. The learned counsel gave up that part of the case of the

2 3 4 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. I<VII

respondent where in it had been alleged that appeals were made to thereligious symbol of cow and calf by the appellant. The following provisohas now been inserted in clause (3) of section 123 by section 8 of Act 40of 1975 :

"Provided that no symbol allotted under this Act to a candidate shallbe deemed to be a religious symbol or a national symbol for thepurposes of this clause".

It is, therefore, apparent in view of the above proviso that the symbolof cow and calf which was allotted to the appellant shall not be deemedto be a religious symbol or a national symbol for the purpose of section123(3) of the R. P. Act. The appellant as such cannot be deemed to havecommitted a corrupt practice under section 123(3) of the R. P. Act by useof the symbol of cow and calf.

In assailing the validity of Act 40 of 1975 Mr. Shanti Bbushan hasreferred to section 10 of that Act, according to which the amendmentsmade by sections 6, 7 and 8 of the Act in the R. P. Act shall h?ve retrospec-tive operation, so as to apply to any election held before the commence-ment of the Act in respect of which an election petition is pending or mrespect of which appeal from any order of the High Couit is pendingimmediately before the commencement of Act 40 of 1975. It is urged thata change in the election law with retrospective effect strikes at the principleof free and fair elections. Retrospective operation of the amending Act,according to the learned counsel, has the effect of condoning what was atthe time it was committed a corrupt practice.

I have given the matter my earnest consideration, and am of theopinion lhat there is no substance in the above contention. A Legislaturehas, except in a matter for which there is prohibition like the one containedin Article 20(1) of the Constitution, the power to make laws which areprospective in operation as well as laws which have retrospective operation.There is no limitation on the power of the Legislature in this respect.Essentially it is a matter relating to the capacity and competence of theLegislature. Although most of the laws made by the Legislature have aprospective operation,; occasions arise quite often when necessity is felt ofgiving retrospective effect to a law. This holds good both in respect of aprincipal Act as well as in respect of an amending Act. Ff the provisionsof an Act passed by the Legislature are not violative of the provisions ofthe Constitution, those provisions shall have to be given effect to and thefact that the operation of the Act is prospective or retrospective wouldmake no difference. It is also permissible to amend a law which is basisof the decision of a court with retrospective effect and relay upon theprovisions of the amended law in appeal against the above decision of thecourt. The court of appeal in such an event gives full effect to the amendedlaw even though such amendment has been made after the decision of theoriginal court. The one field in which it is not permissible to make a lawwith retrospective effect is contained in clause (1) of Article 20, accordingto which no person shall be convicted of any offence except for violationof law in force at the time of the commission of the act charged as anoffence, nor be subjected to a penalty greater than that which might havebeen inflicted under the law in force at the time of the commission of theoffence. Apart from the field in which there is a constitutional prohibitionfor giving retrospective effect to a law, power of making amendment inlaw with retrospective effect has now become a part of normal legislativeprocesses. Question then arises as to whether in spite of the general com-petence of the Legislature to make a law with retrospective effect, is the

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRl RAJ NARAIN 2 3 5

Legislature rendered incompetent to make a law with retrospective effectin election matters? The answer to this question, in my jpinion, shouldplainly be in the negative. Election laws are a part of the normal legisla-tive process and what is permitted in the matter of ordinary legislationwould also be permissible in the matter of legislation relating to electionsunless there be some provision in the Constitution which forbids such acourse. We have not been referred to any provision in the Constisutionwhich has the effect of creating a bar in the way of the Legislature makinga law relating to elections with retrospective operation. If a party seeksto carve out an exception to the normal rule, it can do so only on the basisof some cogent ground. No such ground has been brought to our notice.The matter indeed is not res integra because there have been two caseswherein this Court has upheld the validity of the law making amendmentsin election laws with retrospective effect. The first such case was Stale ofOrissa v. Bhupendra Kumar Base (supra). It arose out of elections to theCuttack Municipality held in December 1957 to March 1958 as a result ofwhich 27 appellants were declared elected as Councillors. The respondent,who was defeated at the elections, filed a writ petition before the High Courtchallenging the elections. The High Court held that the electoral rolls hadnot been prepared in accordance with the provisions of the Orissa Munici-palities, 1950, as the age qualification had been published too late therebycurtailing the period of claims and objections to the preliminary roll to 2days from 21 days as prescribed. The High Court consequently set asidethe elections. The State took the view that the judgment affected not merelythe Cuttack Municipality but other municipalities also. Accordingly, theGovernor promulgated an Ordinance validating the elections to the CuttackMunicipality and validating the electoral rolls prepared in respect of variousmunicipalities. The respondent thereupon filed a writ petition before theHigh Court contending that the Ordinance was unconstitutional. The HighCourt struck down the Ordinance. One of the grounds which weighed withthe High Court in striking down the Ordinance was that it contravenedArticle 14 of the Constitution. The State and the Councillors came up inappeal to this Court. It was held by this Court that the Ordinance wasvalid and that it successfully cured the invalidity of the electoral rolls andof elections to the Cuttack Municipality. The Ordinance was further heldnot to offejid Article 14 of the Constitution as its object was not only tosave the elections to the Cuttack Municipality but also to other munici-palities whose validity might be challenged on similar grounds. TheOrdinance, in the opinion of the Court, did not single out the respondentfor discriminatory treatment. Gajendragadkar, J. (as he then was) speakingfor the Constitution Bench of this Court observed:

"The Cuttack Municipal Elections had been set aside by the HighCourt and if the Governor thought that in the public interest,having regard to the factors enumerated in the preamble to theOrdinance, it was necessary to validate the said elections, it wouldnot necessarily follow that the Ordinance suffers from the vice ofcontravening Art. 14".

It was further observed:

"Therefore, if the infirmity in the electoral rolls on which the decisionof the High Court in the earlier writ petition was based, had notbeen applicable to the. electoral rolls in regard to other Munici-palities in the State of Orissa, then it may have been open to theGovernor to issue an Ordinance only in respect of trie CuttackMunicipal Elections, and if, on account of special circumstances or


reasons applicable to the Cuttack Municipal Elections, a law waspassed in respect of the said elections alone, it could not have beenchallenged as unconstitutional under Art. 14. Similarly, if Mr. Bosewas the only litigant affected by the decision and as such formeda class by himself, it would have been open to the Legislature tomake a law only in respect of this case. But as ws have alreadypointed out, the Ordinance does not purport to limit its operationonly to the Cuttack Municipality; it purports to validate theCuttack Municipal Elections and the electoral rolls in respect otother Municipalities as well. Therefore, we are satisfied that theHigh Court was in error in coming to the conclusion that section4 contravenes Art. 14 of the Constitution".

In Kanta Kathwia v. Manak Chand Suraiia (supra) the dispute relatedto the election of the appellant to the Rajasthan Legislative Assembly.The appellant in that case had been appointed as a Special GovernmentPleader to represent the State of Rajasthan in an arbitration case. Theappellant then stood for election to the State Legislative Assembly and wasdeclared elected. The election of the appellant was challenged inter alia onthe ground that the appellant held an office of profit within themeaning of Article 191 (1) of the Constitution. The High Courtset aside the election of the appellant. The appellant then cameup in appeal to this Court. During the pendency of the appeal. Rajas' hanAct 5 of 1969 was passed declaring among others that the holder of theoffice of Special Government Pleader was not disqualified from being chosenor for being a member of the State Legislative Assembly. The Art wasmade retrospective and removed the appellant's disqualification retrospec-tively. On the question as to whether the appellant was holding an officeof profit and hence was disqualified, Sikri, Ray and Reddy, JJ. held thatthe appellant was not holding an office of profit. Hidayatullah, C.S. andMitterv J., however, held that the High Court was right in holding that theappellant held an office of profit. All the five Judges constituting theConstitution Bench were, however, unanimous on the point that the Act of1969 had removed the disqualification of the appellant retrospectively.Hidayatullah, C.J. speaking for himself and Mitter, J. observed:

"Tt is also well recognised that Parliament and Legislatures of the Statescan make their laws operate retrospectively. Any law that car, bemade prospectively may be made with retrospective operationexcept that certain kinds of laws cannot operate retrospectively.This is not one of them.

• This position being firmly grounded we have to look for limitations, ifany, in the Constitution. Article 191 (which has been quotedearlier) itself recognises the power of the Legislature of the Stateto declare by law that the holder of an office shall not be dis-qualified for being chosen as a member. The article says that aperson shall be disqualified if he holds an office of profit under theGovernment of India or the Government of any State unless thatoffice is declared by the Legislature not to disqualify the holder.Power is thus reserved to the Legislature of the State to make thedeclaration. There is nothing in the words of the article to indicatethat this declaration cannot be made with retrospective effect."

It was further observed:"Regard being had to the legislative practice in this country and in the

absence of a clear prohibition either express or implied we are

JE.L.R.J SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 2 3 7

satisfied that the Act cannot be declared ineffective in its retros-pective operation."

Sikri, J. (as he then was) speaking for himself, Ray, J. (as he then was)and Reddy, J. dealt with the matter in the following words:

"Mr. Chagla, learned counsel for the repondent, contends that theRajasthan State Legislature was not competent to declare retros-pectively under Art. 191(1) (a) of the Constitution. II seems tous that there is no force in this contention. It has been held innumerous cases by this Court that the State Legislatures andParliament can legislate retrospectively subject to the provisions ofthe Constitution. Apart from the question of fundamental rights,no express restriction has been placed on the power of the Legisla-ture of the State, and we are unable to imply, in the context, anyrestriction. Practice of the British Parliament does not oblige asto place any implied restriction. We notice that the British Parlia-ment in one case validated the election: [Erskine May's Treatiseon the Law, Privileges Proceedings and Usage of Parliament—,.Seventeenth (1964) Edition]—

'Alter the general election of 1945 it was found that the persons electedfor the Coatbridge Division of Lanark and the Springbourn Divisionof Glassgow were disqualified at the time of their election becausethey were members of tribunals appointed by the Minister underthe Rent of Furnished Houses Control (Scotland) Act, 1943, whichentitled them to a small fee in respect of attendance at a tribunal.A Select Committee reported that the disqualification was incurredinadvertently and in accordance with their recommendation theCoatbridge and Springbourn Elections (Validation) Bill was intro-duced to validate the irregular election [H. C. Deb, (1945-46) 414,c. 5646. See also H. C. 3 (1945-46); ibid. 71 (1945-46) and ibid. 92(1945-46)'.]

We have also noticed two earlier instances of retrospective legislation,e.g. the House of Commons (Disqualification) Act, IS 13 (HalsburyStatutes of England, p. 467) and section 2 of the Re-election ofMinisters Act, 1919 (ibid. p. 515).

Great stress was laid on the word "declare" in Art. 191 (I) (a), but weare unable to imply any limitation on the powers of the Legislaturefrom this word. Declaration can be made effective as from anearlier date".

The above two authorities of this Court clearly lend support for theview that it is permissible to amend a law relating to elections with retros-pective operation. Mr. Shanti Bhushan has criticised the observations ofSikri, J. reproduced above on the score that in the United Kingdom amend-ments in election law have not been made to affect pending proceedings incourts. This is essentially a matter for the Legislature to decide; this doesnot affect the competence of the Legislature to make a change in electionlaw with retrospective effect. In any case, the proposition of law laid downin the case of Kanta Kachuria is binding upon us and T do not find anyreason to detract either from the soundness of the view expressed thereinor its binding effect.

The Privy Council also upheld in the case of Areyasekera v. Jayalilake(1932 A.C. 260), an Order in Council giving retrospective effect to an electionlaw in Ceylon. This question arose in the following circumstances. An

2 3 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ MARAIN [VOL. LVII

Order in Council of 1923 made provision as to the Legislative Council in:Ceylon, but reserved to His Majesty power to revoke, alter or amend theOrder. The appellant, as common informer brought an action to recoverpenalties under the Order from the respondent, who he alleged had sat andvoted after his seat had become vacant under its provisions by reason of hishaving a pecuniary interest in a contract with the Government. In 1928after the action had been brought, but before its trial, an amending orderin Council was made providing that the action should be dismissed; it alsoamended the Order of 1923 so as to except the office held by the respondentfrom its operation. It was held that the Order of 1928 was valid, havingregard to the power reserved by the Order of 1923, and was an effectivedefence to the action, although it was retrospective in its operation, LordDarling in the above context observed:

"It was argued that the Order in Council of November 1, 1928, wasultra vires as affecting to take away rights already in existence,thus having a retrospective action. The effect, however, of theOrder of 1928, as expressed on the face of it, was no more thanan act of indemnity and relief in respect of penalties incurred. Itmay be true that 'not Jove himself upon the past hath power', butlegislators have certain the right to prevent, alter or reverse theconsequences of their own decrees. There is no necessity to giveinstances to prove that they have frequently done so; even goingso far as to restore the heritable quality to blood which had beendeprived of its virtue by Acts of attainder."

I am not impressed by the argument that retrospective operation of therelevant provisions of Act 40 of 1975 affects free and fair elections. Thesaid provisions of Act 40 of 1975 are general in terms and would apply toall election disputes which may be pending either in the High Court or inappeal before the Supreme Court or which may arise in future. It is nodoubt true that the retrospective operation of an amending Act has theeffect of placing one of the parties to the dispute in a more advantageousposition compared to others but that is inevitable in most of the amend-ments with retrospective operation. This Court in the case of HarbhajanSingh v. Mvhan Singh & Others. [(1972) 2 S.C.C. 364] dealt with the pro-visions of section 3 of the Punjab Pre-emption (Repeal) Act, 1973, accordingto which on and from the date of commencement of that Act, no courtshall pass a decree in any suit for pre-emption. This Court held thaf theabove provision was also applicable to appeal—commencement of that Actas which were pending at the an appeal was in the nature of a re-hearing,and as such even if the suit had been decreed by the trial court, the suitwas liable to be dismissed because of the coming into force of the PunjabPre-emption (Repeal) Act during the pendency of the appeal. It is plainthat only those vendees obtained the benefit of the above Act who had filedappeal against the decree awarded against them in pre-emption suit.Vendees in other cases who did not file appeal against the decrees awardedagainst them in view of thg_ then existing law had to lose the purchasedproperty and thus be at a disadvantage. That fact, however, did not pre-vent this Court from giving effect to the amendment. Whenever a legisla-ture makes a law or amends a law, it has to indicate the time from whichit would come into effect. This is essentially a matter for the Legislatureand the court cannot substitute its own opinion for that of the Legislature.The fact that the change in law is made applicable to pending* cases andthe classification treats the decided cases as belonging to one category andpending cases as belonging to another category is not offensive to Article 14'


(see Anant Mills v. State of Gujarat). [(1975) 2 S.CC. 175] Nor can thecourt interfere on the score of the propriety of giving retrospective effect toan amendment made in an election law. Indeed, the question of proprietyis a matter which is entirely for the Legislature to think of and decide. Itcannot affect the validity of the law. This Court in the case of KantaKathuria (supra) expressly rejected the contention that amendment in elec-tion law was void because it gave advantage to a party. Hidayatullah, C. J.observed in this context:

"It is true that it gave an advantage to those who stand when the dis-qualification was not so removed as against those who may havekept themselves back because the disability was not removed. Thatmight raise questions of the propriety of such retrospective legis-lation but not of the capacity to make such laws."

Likewise, Sikri, J. expressly rejected the contention that retrospectiveamendment in election law was bad because it was not a healthy practiceand because such a course was liable to be abused in the following words:

"The apprehension that it may not be a healthy practice and this powermight be abused in a particular case are again no grounds forlimiting the powers of the State Legislature."

The above observations also provide an answer to the contention ofMr. Shanti Bhushan that the provisions of the amendment made by Act 40of 1975 can be abused. I may state that in case the provisions of theamended law are abused, and some of the instances of abuse were visualizedby Mr. Shanti Bhushan during the course of arguments, this Court would,not be helpless in the matter. The proper course in such an event wouldbe to strike down the action taken under the amended lav/ and not the lawitself.

Reference was also made by Mr. Shanti Bhushan to the effect of retros-pective amendment in cases which may arise under section 123(1) of theR. P. Act. We are in the present case not concerned with section 123(1)of the R. P. Act and consequently it is not necessary to express any opinionwith regard to the impact of the amendment upon section 123(1) of theR. P. Act. Nor is it necessary to express opinion on the point as to whetherit is permissible to make a law which has the effect of creating a corruptpractice or disqualification retrospectively and thus unseating a returnedcandidate as such a question does not arise in this case.

The change in the definition of the word "candidate" to which ourattention has been invited by Mr. Shanti Bhushan does not impinge uponthe process of free and fair elections. The fact that as a result of the abovechange, we have to take into account only the prejudicial activity of thecandidate or his election agent from the date of the nomination of thecandidate and not from the date he holds himself out as a candidate doesnot affect the process of free and fair elections. It is necessary while dealingwith corrupt practice relating to elections to specify the period within whichthe impugned Act, alleged to constitute corrupt practice should have beendone. As a result of the amendment, the Legislature has fixed the saidperiod to be as from the date of nomination instead of the period as fromthe date on which the candidate with the election in prospect began to holdhimself out as a prospective candidate. It is common experience that thedate from which a candidate holds himself out as a prospective candidateis often a matter of controversy between the parties. The result is that anelement of indefiniteness and uncertainty creeps in finding the date from


"which a person can be said to be candidate. As a result of the change inthe definition of candidate, the Legislature has fixed a definite date, viz.that of nomination, instead of the earlier time which had an element ofindefiniteness and uncertainty about it for finding as to when a personbecame a candidate. Certainty is an essential desideratum in law and anyamendment of law to achieve that object is manifestly a permissible pieceof legislation. The choice of date was a matter for the Legislature todecide and the court cannot substitute its own opinion for *hat of theLegislature in this respect, more so, when whatever be the choice of date,has aspects of both pros and cons. The date of nomination is normally,as in the present case, about a month before the date of polling and it isplain that most of the acts of corrupt practice are committed during thisperiod. In any case, as mentioned above, the court cannot substitute itsown opinion for that of the Legislature in the choice of date. The choiceof date, as observed in the case of Union of India v. Messrs. ParameswaranMatch Works [A.I.R. (1974) S.C. 2349] as a basis for classification cannotalways be dubbed as arbitrary even if no particular reason is forthcomingfor the choice unless it is shown to be capricious or whimsical in the cir-cumstances. When it is seen that a line or a point there must be and thereis no mathematical or logical way of finding it precisely, the decision ofthe Legislature or its delegate must be accepted unless we can say that it, isvery wide of any reasonable mark.

One of the objects of the change effected by Act 40 of 1975 is to re-taove the uncertainty and set at rest the controversy as to what would bethe precise date of a person in the service of the Central Government ceasingto be in such service in case he tenders his resignation. The amended lawmakes it clear that where the date of taking effect of the resignation isstated in the publication in the Official Gazette, it shall be that date. Simi-larly, in the case of appointment of a person, the date of taking effect ofsuch appointment shall be the date mentioned in the publication in theOfficial Gazette in case such a date is stated in such publication. The factthat the new provision creates a conclusive presumption with regard to thedate of taking effect of appointment or resignation does not mean, as issought to be argued on behalf of the respondent that there has been anencroachment by the Legislature upon the judicial sphere. Laying down arule of conclusive presumption in a statute with a view to remove uncer-tainty with regard to the date of the taking effect of appointment or resigna-tion of a Government employee cannot be characterised as an assumptionof judicial power by the Legislature. Another object of the changeeffected by Act 40 of 1975 is that a candidate who is bound, in viewof para 8 of the Election Symbols (Reservation and Allotment)Order, 1968, to use the party symbol allotted by theElection Commission and who cannot use any other symbol, shall notsuffer and be guilty of corrupt practice under section 123 (3) of the R. P.Act because of the use of that symbol. It is to be assumed that ElectionCommission which is an independent body, would act fairly and properlyand would not allot a symbol, which is a religious symbol, to a party or acandidate. The fact that the allotted symbol, was one of those suggestedby the party concerned would not relieve the Election Commission of itsduty to see that it does not allot a religious symbol to that party. Assum-ing that the Election Commission makes an error of judgment in thisrespect and allots a symbol which, in fact, is a religious symbol, the objectof the new provision is that a candidate should not be penalised becauseof such an error on the part of the Election Commission. The third objectof the change effected by Act 40 of 1975 is that a candidate should not


sutler or be held guilty of corrupt practice because of any act done by anyperson in the service of the Government and belonging to any of the classesmentioned in section 123(7) of the R. P. Act in the discharge or purporteddischarge of his official duty. None of the three objects mentioned abovehas any taint of unconstitutionality and to find it difficult to hold that heimpugned provisions impinge upon the principle of free and fair elections.

So far as the newly added proviso to section 123(7) is concerned, itmay be stated that the act in the discharge or purported discharge of officialduty of the Government employees referred to above would in the verynature of things have to be of a kind which is germane to their officialduties. It may include steps taken by the Government employees formaintenance of law and order or in connection with the security of acandidate or other persons. It would not however, include canvassing ordoing such acts which may properly be considered to be part of the electionpropaganda for furtherance of the prospects of a candidate's election. Intaking action under the above provision, it must be borne in mind as statedon page 152 of Free Elections by W. J. M. Mackenzie that in the last resort"the system of free elections depends on a certain separation of powersbetween administrators (or policemen) and politicians : there must be somepublic sense that police and administration serve the public not the partyleaders". What would be permissible under the above provision wouldbe that which is conceived to be done in public interest and not somethingconceived to be done in the personal interest of a candidate. In spite ofsome difficulty which may arise in borderline cases, this distinction mustbe borne in mind. If, however, because of doing something conceived inpublic interest, e.g., as in the present case the security arrangement for theperson holding the office of the Prime Minister, some advantage may alsopossibly accrue to a candidate, it will have to be regarded as incidentaland would not detract from action taken under the above provision beingin public interest. As against that, any action taken with a view to furtherthe personal interest of a candidate should not be allowed to be camouflaged.as an action taken in public interest. Care must be taken to ensure thatpublic interest is not allowed to degenerate into a cloak for furtherance ofthe personal interests of a candidate in an election. The discharge orpurported discharge of official duty must necessarily have public interestand not the personal interest of a candidate as its basis. The courts whiledealing with the newly added proviso to section 123(7) should construe it,if reasonably possible, in such a manner as would sustain the validity ofthat proviso. In case there is abuse of the above provision, the propercourse, as already mentioned, would be to strike down the action takenunder the proviso and not the proviso itself.

One other change brought about by Act 40 of 1975 is the addition ofan explanation in section 77 of the R. P. Act. According to the newexplanation, any expenditure incurred in respect of any arrangements made,facilities provided or any other act or thing done by any person in theservice of the Government and belonging to any of the classes mentionedin clause (7) of section 123 in the discharge or purported discharged ofhis official duty as mentioned in the proviso to that clause shall not bedeemed to be expenditure in connection with the election incurred orauthorized by a candidate or by his election agent for the purposes ofsection 77(1). The validity of the above explanation in a great measureis linked with the validity of the new proviso to section 123(7) of the R. P.Act, and for the reasons stated for upholding the proviso to section 123(7),the new explanation to section 77, it seems, may have also to be upheld.


It is not necessary to dilate upon this aspect because even without invoicingthe aid of the new explanation to section 77, the High Court has found,and I see no reason to disturb that finding, that the total expenses incurredby the appellant were less than the prescribed limit.

Argument has also been advanced that validity of Act 40 cf 1975cannot be assailed on the ground that it strikes at the basic structure ofthe Constitution. Such a limitation, it is submitted, operates upon anamendment of the Constitution under article 368 byt it does not hold goodwhen Parliament enacts a statute in exercise of powers under article 245of the Constitution. In view of my finding that the provisions of Act40 of 1975 with which we are concerned have not been shown to impingeupon the process of free and fair elections and thereby to strike at thebasic structure of the Constitution, it is not necessary to deal with theabove argument. I would, therefore, hold that the provisions of Act 40of 1975 with which we are concerned are valid and do not suffer from anyconstitutional infirmity.

We may now deal with cross appeal No. 909 of 1975. Mr. ShantiBhushan has not pressed the challenge to the findings! of the High Courton issues 4 and 7. He has, however, assailed the finding of the High Courton issue No. 9 whereby the High Court held that the appellant incurredan expenditure of Rs. 31,976.47 on her election as against the prescribedlimit of Rs. 35,000. In Ex. 5, Return of her election expenses, the appellantshowed her total election expenses to be Rs. 12,892.97. The respondent inpara 13 of the election petition alleged that the appellant and her electionagent had incurred expenditure much beyond the prescribed limit ofRs. 35,000 and thereby committed corrupt practice under section 123(6) ofthe R. P. Act. The respondent gave some items of the expenditure whichwere alleged to have been incurred by the appellant and her election agentbut were not shown in the return of the election expenses. The materialitems with which we are now concerned were as under:

(i) The hiring charses of the vehicles specified in Over in Rs. *para 13(1) 1,28,700

(ii) Cost of petrol and diesel for the vehicles specifiedin para 13(1) . . . . . . . 43,230

(iii) Payments made to the drivers of vehicles specifiedin para 13(1) 9,900

(iv) Repairing and servicing charges of vehicles specifiedin para 13(1) • 5,000

(v) Payments made to the workers engaged for thepurpose of election propaganda . . . . 6,600

(vi) Expenses on the erection of rostrums for the publicmeetings addressed by the appellant in the Constituencyon February I and 25, 1971 1,32,000

(vii) Expenses on arrangement of loudspekers for thevarious election meetings of the appellant addressedon February 1 and 25, 1*911 . . " . . . 7,000

• (viii) Expenses on motor transport for the conveyance ofthe appellant and her party to the place of her elec-tion meetings on February 1 and 25, 1971 • . . 2,000


The High Court held that the respondent had failed to prove the first fiveitems. As regards the expenses for the erection of rostrums for the publicmeetings addressed by the appellant on February 1 and 25, 1971, the HighCourt found that four meetings were addressed by the appellant in theconstituency on.February 1 and six meetings on February 25, 1971. Thecost of a rostrum in each meeting came to Rs. 1,600. The total expensesof the tein rostrums thus came to Rs. 1.6,000 and the same, it was held, wasliable to be added to the amount shown in the return of election expenses

•of the appellant. The amount of Rs. 16,000 included the money paid bythe District Congress Committee as its share of the cost of rostrums.Regarding the expenses of loudspeakers, the High Court found that the

• total expense of Rs. 800 had been incurred on the installation of loudspeakersin the meetings addressed by the appellant on. February 1 and 25, 1971. Inaddition to that, the High Court added Rs. 1,151 as cost of energy suppliedfor the functioning of the loudspeakers. The total amount which wasadded to the election expenses of the appellant on account of the loud-speakers thus came to Rs. 1,951. An amount of Rs. 232.50 was foundby the High Court to have been incurred by the appellant for her transporton February 1 and 25, 1971. Adding the aggregate of Rs. 16,000,Rs. 1,951 and Rs. 232.50, in all Rs. 18,183.50, to the figure of Rs. 12,892.97which had been shown by the appellant in her return, the total expenseincurred by the appellant on her election was found by the High Court tobe Rs. 31,976.47.

In appeal before us Mr. Shanti Bhushan has assailed the finding ofthe High Court in so far as the High Court has not accepted the case ofthe respondent that the appellant incurred expenses on the cost of hiring,petrol and the salary of the drivers for 23 vehicles. It may be mentionedthat the respondent in para 13 of the election petition referred to 32vehicles which were alleged to have been hired by ths appellant, but bothbefore the High Court and in appeal before us, learned counsel for therespondent has confined his argument to 23 vehicles.

To appreciate the point of controversy between the parties, it may benecessary to set out some material facts. Section 160 of the R. P. Actprovides inter alia that if it appears to the . State Government that inconnection with an election held within the State, any. vehicle is needed oris likely to be needed for the purpose of transport of ballot boxes to orfrem any polling station, or transport of members of the police force formaintaining order during the conduct of such election, or transport of anyofficer or other person for performance of any duties in connection withsuch election, the Government may by order in writing requisition suchvehicle, provided that no vehicle which is being lawfully used by acandidate or his agent for any purpose connected with the election of suchcandidate shall be requisitioned until the completion of the poll at suchelection. It appears that 23 vehicles, described at some places as cars andat Trther places as jeeps, were requisitioned by the district authorities, RaeBareli for election purposes under the above provision. On February 23,1971 Dal Bahadur Singh, who was the President of the District CongressCommittee, Rae Bareli, addressed a letter to the District Officer, RaeBareli praying that the abovementioned 23 vehicles, of which the numberswere given had been taken by the District Congress Committee, Rae Barelifor the Parliamentary Constituencies of Rae Bareli, Amethi and Ram SanehiGhat. There are, it may be stated, seven Assembly constituencies in RaeBareli District. Out of them, five Assembly Constituencies constitute, RaeBareli Parliamentary Constituency. One of the Assembly Constituencies in


Rae Bareli District is part of Ram Sanehi Ghat Parliamentary Constituency,while the Seventh Assembly Constituency is part of Amethi ParliamentaryConstituency. On February 24, 1971 a reply was sent on behalf of theDistrict Election Officer to Dal Bahadur Singh regarding the latter's requestfor release of 23 vehicle's. It was pointed out in the reply that it was notpossible to release the vehicles in favour of any party for election pur-poses. At the same time, it was mentioned that the question of releas-ing of the vehicles could be considered at the request of a candidate orhis election agent. On receipt of the above reply, Dal Bahadur Singh 'sent the same to Yashpal Kapur on February 24, 1971 along with noteA-43, the material part of which reads as under:

"You are requested to kindly write a letter with your recommendationto the Election Officer so that the cars taken by the DistrictCongress Committee may be released. I have tried to find outShri Vidyadhar Vajpayee who is contesting the election fromAmethi Parliamentary Constituency and Shri Baiznath Kureel whois contesting the election from Ram Sanehi Parliamentary Consti-tuency, but they are not available. You are, therefore, requestedto write the above letter to the District Election Officer positivelyso that the election work of all the three Parliamentary Constitu-encies which is going on, on behalf of District Congress Committee,may not suffer."

On February 25, 1971 Yashpal Kapur addressed a letter to the DistrictOfficer, Rae Bareli stating that the 23 vehicles in question hadbeen taken by the District Congress Committee, Rae Bareli for ihe threeParliamentary Constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat.The District Officer was requested to release the 23 vehicles without delay.Yashpal Kapur also enclosed with that letter the note of Dal Bahadur Singh.The 23 vehicles, it would appear, were thereafter released by the DistrictElection Officer. The appellant, in para 1Kb) of her written statement,admitted that those 23 vehicles were used by the District Congress Commit-tee, Rae Bareli for election work in the three Parliamentary Constituenciesof Rae BareU, Amethi and Ram Sanehi Ghat. The High Court, in notaccepting the case of the respondent in respect of the 23 vehicles, observedthat there was nothing to show that the aboveroentioned vehicles had beenobtained on hire or were obtained gratis. There was also, according tothe High Court, no cogent material to show that the said vehicles had beenengaged and used in connection with election work of the appellant.

Mr. Shanti Bhushan, while assailing the finding of the High Couit, hassubmitted that, as five out of the seven Assembly constituencies in RaeBareli District were in Rae Bareli Parliamentary constituency, five-seventhof the expenses incurred on the said 23 vehicles should be added to theelection expenses of the appellant. I find it difficult to accede to the abovesubmission because of the paucity of the material on record. There is nocogent evidence to show that the 23 vehicles in question were used for theelection of the appellant. It is no doubt true that the said 23 vehicles wereused by the District Congress Committee, Rae Bareli for election woik inthe three Parliamentary constituencies, viz., Rae Bareli, Amethi and RamSanehi Ghaf. The record is, however, silent on the point as to what extentthey were used in Rae Bareli Parliamentary constituency. One can in theabove context visualise three possibilities :

(i) As the appellant, who was the Prime Minister of the country, wascontesting from Rae Bareli constituency, the District Congress

E.L.R.J SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 2 4 5

Committee concentrated its attention on that constituency and usedthe 23 vehicles mostly for the election work in that constituency.

(ii) As the appellant had a mass appeal the District CongressCommittee office bearers thought that the Rae Bareli constituencywas very safe and, therefore, concentrated attention on the othertwo Parliamentary constituencies and used the 23 vehicles mostlyfor those two constituencies.

(iii) Equal attention was paid to all the three constituencies and therewas proportionate use of the vehicles for the three constituencies.

Mr. Shanti Bhushan would have us to accept the first or the thirdpossibility and would rule out the second. If so, it was, in my opinion,essential for the respondent to lead some evidence regarding the use of the23 vehicles. He did nothing of the kind. Neither the owners nor thedrivers of those vehicles were examined as witnesses. There was also, asmentioned earlier, no other cogent evidence to show that those vehicles orany of them were used for the appellant's election in the Rae Bareli cons-tituency, and if so, to what extent. The respondent himself did not comeinto the witness-box to substantiate the charge against the appellant regard-ing the use of the 23 vehicles. The fact that iDal. Bahadur Singh was notexamined as a witness on behalf of the appellant would not warrant thefilling in of the gaps and lacunae in the evidence adduced by the respondentby a process akin to guess work. It is no doubt true that by using a vehiclefor the furtherance of the prospects of candidates in more than one consti-tuency one should not be allowed to circumvent the salutary provisions ofthe R. P. Act in this respect. To prevent such circumvention, it is essentialthat evidence should be led to show as to what was the extent of the userof the vehicle in the constituency concerned. In Hans Raj versus Pt. HadRam and Others (40 E.L.R. 125) a jeep hired by the Congress Committeeduring elections was used in more than one Constituency, including that ofthe returned candidate who was a Congress nominee. Question arose as towhether the expense incurred in connection with that jeep could be includ-ed in the election expenses of the returned candidate. While answering thequestion in the negative, Hidayatullah C. J. observed :

"The bill stands in the name of the Congress Committee and waspresumably paid by the Congress Committee also. The evidence,however, is that this jeep was used on behalf of the returnedcandidate and to that extent we subscribe to the finding given bythe learned judge. Even if it be held that the candidate wasat bottom the hirer of the jeep and the expenditure on it mustbe included in his account, the difficulty is that this jeep was usedso far the general Congress propaganda in other constituencies.As we stated, the jeep remained in Chalet and a Mubarakpur.No doubt Chalet is the home town of the returned candidateand his office was situated at Mubarakpur but that does notindicate that the jeep was used exclusively on his account. Thepetrol chart shows that petrol was bought at several pumps, bothinside the constituency and outside. This shows, as does theeyidence, that the jeep was used not only in this constituencybut also in the other constituencies. If this be true, then, it isalmost impossible on the evidence as it exists in this case todecide how much of the use went for the benefit of the returnedcandidate and how much for the use of candidates in the other

17—345 Elec. Com./ND/81

2 4 6 SMT. INDIRA NEHRU GANDHI V. SIIR1 RAJ NARAIN [VOL. LVII

constituencies also put up by the Congress Committee. In thissituation it is difficult to say that the whole of the benefit of thejeep went to the returned candidate and once we hold that theentire benefit did not go to him, we are not in a position toallocate the expenses between him and the other cand dates inthe other constituencies."

Reference has also been made during the course of arguments by Mr.Shanti Bhushan to some entries in a register of the Congress1 Committee.The High Court declined to place any reliance on those entries as thoseentries had not been proved. I see no cogent ground to take a differentview. Our attention has been invited by Mr. Shanti Bhushan to a reportin issue, dated January 22, 1971 of Swantantra Bharat wherein there wasa reference to the Personal Secretary of the Prime Minister having reachedRae Bareli with a caravan of 70 motor vehicles. No reliance can beplaced upon that report as the correspondent who sent that report was notexamined as a witness.

The other difficulty which I find in accepting the submission of Mr.iShanti Bhushan in respect of 23 vehicles is that there is no evidence toshow that any payment was made for the use of the abovementionedvehicles. There is also nothing to show that those vehicles were engagedon hire. As menr'ooed earlier, the owners and drivers of those \ehicleswere not examined as witnesses. I. therefore, find no sufficient ground tointerfere with the finding; of the High Court in respect of the abevemen-tbned 23 vehicles.

Mr. Shanti Bhushan has next assailed the finding of the High Courtin so far as it has held that the respondent has failed to prove that theappellant incurred an expense of Rs. 6,600 on workers engaged for thepurposes of election propaganda. I, however, find no infirmity in the find-ing of the High Court in this respect as there is no cogent evidence what-soever that any expense was incurred for engaging workers for the electionwork of the appellant. The case of the appellant is that her vjoikers didthe work voluntarily and without receipt of any remuneration.

Apart from challenging the findings of the High Court in respect of23 vehicles and the alleged payment to workers, Mr. Shanti Bhushan hasalso referred to some other circumstances with a view to show that theelection expenses of the appellant exceeded the prescribed amount ofRs. 35,000. It has been pointed out that a cheque for Rs. 70,000 was sentby the Provincial Congress Committee to Dal Bahadur Singh, President ofihe District Congress Committee, Rae Bareli and the same was credited inDal Bahadur Singh's account after deducting of the bank charges on March4, 1971. Dal Bahadur Singh withdrew out of that amount Rs. 40.000 andRs. 25,000 on March 4 and 6, 1971 respectively near about the days ofpolling. It is urged that the said amount must have been spent for the''.n?v:?ose °f the elections. There was no reference to the sa'd amount ofR v, "7O.OC-0 in the petition. There is also no reference to the amount ofRs, 70-000 i'i ;>'.e iad.-rm^nt of the High Court or in the grounds of appeal.As such, I am of the v ew that the respondent should not be allowed toset ur> a case against 'he appellant on the basis of the bank entries in theaccount of Dal Bahadur Singh. Reference has further been made by Mr.Shanti Bhushatf to the expenses which were alleged to have been incurred

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ N4.RATN 247

on the telephone charges and the meetings addressed by Yashpal Kapur.The High Court rejected the submission in this respect on behalf of therespondent in the following words :

"Learned counsel for the petitioner urged that from the evidence onrecord, it transpires that expenditure was also incurred on thetelephone connection and telephone charges; on the meetingsaddressed by Sri Yashpal Kapur within the Constituency duringthe period f election; on the election material viz., pamphlets,posters, etc. and on the lighting arrangement made for some meet-ings addressed by the respondent No. 1. According to learnedcounsel, these expenses are also liable to be added to the electionexpenses of the respondent no. 1. None of these expenses were,however, pleaded in the petition. In fact, till the commencementof the arguments in the case, the respondent no. 1 could not evenant:cipafe that the petitioner shall rely on these expenses for thepurpose of bis cose. It will, therefore, be prejudicial to the interestof respondent no. 1 if the aforesaid expenses are taken intoconsideration. The submission made by learned counsel for thepetitioner is accordingly negatived."

1 am in full agreement wi;h the above observations of the High Courtand find no cogent ground to take a different view.

It may be slated that in view of the new explanation added to section77 of the R- P. Act by Act 40 of 1075, the amount of Rs. 12,000 whichrepresented 75 per cent of the expenditure incurred on the construction of10 rostrums borne by the Government, cannot be included in the totalelection expenses of the appellant. The High Court was also inclined tohold that the said amount of Rs. 12,000 could not be included in theappellant's expenses. The High Court, however, included the total amountof Rs. 16,000 in the election expenses of the appellant upon the assumptionthat the appellant had not disavowed that expenditure. Be that as it may,the fact remains that the High Court has found on issue no. 9 that thetotal expenses incurred by the appellant on her election have not beenshown to exceed the prescribed limit. I find no cogent reason to interferewith that finding.

I also agree with the High Court that as the election expenses of theappellant have not been shown to exceed the prescribed limit of Rs. 35,000the question of invok;ng and going into the validity of Act 58 of 1974 doesnot arise. Nor is it necessary to express an opinion about the view takenin Konwarlal versus Amctmath Chawla—{AIR (1975) S. C 308] in view ofthe fact that even after applying the rule laid down in that case, the totalelection expense of the appellant has not been shown to exceed theprescribed limit.

So far as the finding of the High Court on issue no. 6 regarding theuse of the symbol of cow and calf is concerned, the matter, as alreadydiscussed earlier, is now covered by the amendment made in sect:on 123(3)of the R. P. Act by section 8 of Act 40 of 1975.

There was a controversy during the course of arguments on the pointas to whether I have laid down in my judgment in K»savananda BJmrati'scase {supra) that fundamental rights are not a part of the basic structureof the Constitution. As this controversy cropped up a number of times,iit seems apposite that before I conclude I should deal with the contention

2 4 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARA1N [VOL. LVII

advanced by learned Solicitor General that according to my judgment inthat case no fundamental right is part of the basic structure of the Consti-tution. I find it difficult to read anything in that judgment to justify sucha conclusion. What has been laid down in that judgment is that no articleof the Constitution is immune from the amendatory process because of thefact that it relates to a fundamental right and is contained in Part III ofthe Constitution. It was also held that a constitutional amendment underArticle 368 does not constitute "law" as mentioned in Article 13. I alsodid not agree with the view taken in the case of Golaknath [(1967) 2 S.C.R.762] that there was a limitation on the power of Parliament to amend theprovisions of Part III of the Constitution so as to abridge or take awaythe fundamental rights. I thereafter dealt with the scope of the power ofamendment under Article 368 and the connotation of the word "amend-ment" and said in this context:

"I am further of the opinion that amendment of the constitutionnecessarily contemplates that the constitution has not to beabrogated but only changes have to be made in it. The word"amendment" postulates that the old constitution survives withoutloss of identity despite the change and continues even though ithas been subjected to alterations. As a result of the amendment,the old constitution cannot be destroyed and done away with it isretained though in the amended form. What then is meant bythe retention of the old constitution? It means the retention ofthe basic structure or framework of the old constitution. Amere retention of some provisions of the old constitution eventhough the basic structure or framework of the constitution hasbeen destroyed would not amount to the retention of the oldconstitution. Although it is permissible under the power ofamendment to effect changes howsoever important, and to adoptthe system to the requirements of changing conditions, it is notpermissible to touch the foundation or to alter the basic institu-tional pattern. The words 'amendment of the constitution' withall their wide sweep and amplitude cannot have the effect ofdestroying or abrogating the basic structure or framework of theconstitution. It would not be competent under the garb of amend-ment, for instance, to change the democratic government intodictatorship or hereditary monarchy nor would it be permissible toabolish the Lok Sabha and the Rajya Sabha. The secular characterof the State according to which the State shall not discriminateagainst any citizen on the ground of religion only cannot likewisebe done away with. Provision regarding the amendment of theconstitution does not furnish a pretence for subverting the struc-ture of the constitution nor can Article 368 be so construed asto embody the death wish of the Constitution or provides sanctionfor what may perhaps be called its lawful harakiri. Such subver-sion or destruction cannot be described to be amendment of theConstitution as contemplated by article 368."

It was further observed by me :

"The word 'amendment' in article 368 must carry the same meaningwhether the amendment relates to taking away or abriding funda-mental rights in Part III of the Constitution or whether it pertainsto some other provision outside Part III of the Constitution. Noserious objection is taken to repeal, addition or alteration of

E.L.R.J SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 249

provisions of the Constitution other than those in Part III underthe power of amendment conferred by article 368. The sameapproach, in my opinion, should hold good when we deal withamendment relating to fundamental rights contained in Part III ofthe Constitution. It would be impermissible to differentiate betweenscope and width of power of amendment when it deals withfundamental rights and the scope and width of that power whenit deals with provisions not concerned with fundamental rights."

It would appear from the above that no distinction was made by me sofar as the ambit and scope of the power of amendment is concerned betweena provision' relating to fundamental rights and provisions dealing withmatters other than fundamental rights. The limitation inherent in the word"amendment" according to which it is not permissible by amendment ofthe Constitution to change the basic structure of the Constitution was tooperate equally on articles pertaining to fundamental rights as on otherarticles not pertaining to those rights, This was further made clear bythe following observations on page 688 :

"Subject to the retention of the basic structure or framework of theConstitution, I have no doubt that the power of amendment isplenary and would include within itself the power to add, alteror repeal the various articles including those relating to fundamentalrights."

Proposition (vii) of the summary of my conclusions on page 758 of thejudgment also bears it out and the same reads as under :

"(vii) The power of amendment under article 368 does not includepower to abrogate the Constitution nor does it include the powerto alter the basic structure or framework of the Constitution.Subject to the retention of the basic structure or framework of theConstitution, the power of amendment is plenary and includeswithin itself the power to amend the various articles of theConstitution, including those relating to fundamental rights as wellas those which may be said to relate to essential features. Nopart of a fundamental right can claim immunity from amendatoryprocess by being described as the essence or core of that rightThe power of amendment would also include within itself thepower to add, alter or repeal the various articles"

It has been stated by me on page 685 of the judgment (alreadyreproduced above) that the secular character of the State, according iowhich the State shall not discriminate against any citizen on the ground ofreligion only cannot likewise be done away with. The above observationsshow that the secular character of the Constitution and the rights guaranteedby Article 15 pertain to the basic structure of the Constitution. The aboveobservations clearly militate against the contention that according tc myjudgment fundamental rights are not a part of the basic structure of theConstitution, It also dealt with the matter at length to show thatthe right to property was not a part of the basic structure of the Constitution.This would have been wholly unnecessary if none of the fundamental rightswas a part of the basic structure of the Constitution.

Before parting with this case I must acknowledge the assistance wereceived from the learned counsel for the parties as also from learnedAttorney General and Solicitor General in resolving the points of

2 5 0 SMT. INDIRA NEHRU GANDHI V, SHRI RAJ RARAIN [VOL. LVII

controversy. In spite of the political overtone.;, the case was argued force-fully yet without generating any heat and in an atmosphere of befittingcalmness. It has been paid by Holmes, J. that great cases like hard casesmake bad law. For great cases are called great, not by reason of iheirreal importance in shaping the law of the future, but because of someaccident of immediate overwhelming interest, w-iich appeals, to 'he feelingsand distorts the judgment. These immediate interests exercise a kind ofhydraulic pressure (National Securities Co. v. U.S.) 193 U.S. 197 at 400-1(1904). It, therefore, became essential to rid the case of al! the embellish-ments resulting from the political overtones and to bring h to a level whichis strictly judicial, so that the various constitutional and legal aspects oi thematter may be examined in a dispassionate atmosphere. Learned counselfor the parties made a significant contribution towards the attainment ofthis objective. It may not be inappropriate in the above context toreproduce what was said by one of us (Khanna, J.) in Kesavanauda Bharati'scase (supra) at page 755 :

"That all constitutional interpretations have political consequencesshould not obliterate the fact that the decision has to be anivedat in the calm and dispassionate atmosphere of the court room,that judges in order to give legitimacy to their decision have tokeep aloof from the din and controversy of politics and that thefluctuating fortunes of rival political parties can have for themonly academic interest. Their primary duty is to uphold theconstitution and the laws without fear or favour and in doing so,they cannot allow any political ideology or economic theory, whichmay have caught their fancy, to colour the decision."

As a result of the above, I accent Appeal no. 887 of 1975 filed bySrimati Indira Nehru Gandhi, set aside the judgment of the High Court inso far as it has found the appellant guilty oi' corrupt practice under section123 (7) of the R. P. Act and has declared her election to the Lok Sabhato be void. The order that the appellant shall accordingly stand disqualifiedfor a period of six years as provided in section 8A would a1 so consequentlybe set aside. The election petition filed bv the respondent shall standdismissed. Appeal no. 909 of 1975 filed by Sri Raj Narahi is dhmis-.ed..Looking to all the circumstances, more particularly the fact that the electionpetition filed by the respondent is being dismissed became ot changes madein law during the pendency of the appeal, the parties are directed to bear,their own costs throughout.

MATHEW, J.—In the election petition filed by the respondent in CivilAppeal no. 837 of 1975 (hereinafter referred to as 'respondent'), sevencharges of corrupt practice were made against the appellant therein (herein-after called the 'appellant') and it was prayed that the election ox theappellant be set aside. The learned Judge who tried the petition found thattwo of the charges had been made out but that the rest of the charges werenot substantiated. He set aside the election of the appellant with the resultthat the appellant incurred the disqualification for a period of six years asvisualized in section 8A of the Representation of the Peocle Act, 1951. Itis against this judgment that Civil Appeal no. 887 of 1975 has been filed.

The respondent has filed a cross-appeal (Civil Appeal no. 909 of 1975}challenging the findings of the High Court in respect of the other chargeof corrupt practice.

During the pendency of these appeals, the Parliament passed iheElection Laws (Amendment) Act, 1975 on 6th August, 1975 by which certainamendments were made in the provisions of the Representation of the PeopleAct, 1951, and the Indian Penal Code.


On 10th August, 1975, the Parliament, in the exercise of its constituentpower, passed the Constitution (Thirty-ninth Amendment) Act, 1975 (here-inafter referred to as the 'Amendment'). By the Amendment, Article 71 ofthe Constitution was substituted by a new Article and that Article providedby clause (I) that, subject to the provisions of the Constitution, Parliamentmay, by law, regulate any matter relating to or connected with f'le electionof a President or Vice-President, including the grounds on which such electionmay be questioned. By clause (2) of the Article it was provided that alldoubts and disputes arising out of or in connection with the election of aPresident or Vice-President shall be inquired into and decided by suchauthority or body in such manner as may be provided for by or under anylaw referred to in clause ('!)• Clause (3) stated that the validity of any suchlaw referred to in clause (1) and the decision of any authority or body undersuch lav/ shall not be called in question in any court.

By clause 4 of the Amendment, Article 329-A was inserted reading asfollows :.

"329-A. Special provision as to elections to Parliament in the case ofPrime Minister and Speaker—(1) Subject to the provisions of Chapter II ofPart V [except sub-clause (e) of clause (1) of article 102], no election—

(a) to either House of Parliament of a person who holds the office ofthe Prime Minister at the time of such election or is appointed asPrime Minister after such election ;

(b) to the House of the People of a person who holds the office of aSpeaker of that House at the time of such election or who is chosenas the Speaker for that House after such election;

shall be called in question except before such authority [not being any suchauthority as is referred to in clause (b) of Article 329] or body and in suchmanner as may be provided for, by or under any law made by Parliamentand any such law may provided for all other matters relating to doubts anddisputes in relation to such election including the grounds on which suchelection may be questioned.

(2) The validity o f any such law as is referred to in clause (!) and thedecision of any authority or body under such law shall not be called inquestion in any court.

(3) Where any person as appointed as Prime Minister or, as the casemay be, chosen to the office of the Speaker of the House of the People,while an election petition referred to in clause (b) of Article 329 in respect ofhis election to either House of Parliament or, as the case may be, to theHouse of the People is pending, such election petition shall abate upon suchperson being appointed as Prime Minister or. as the case may be, beingchosen to the office of the Speaker of the House of the People, but suchelection may be called in question under any such law as is referred to inclause (1).

(4) No law made by Parliament before the commencement of theConstitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates toelection petitions and matters connected therewith shall apply or shall bedeemed ever to have applied to or in relation to the election of any suchperson as is referred to in clause (1) to either House of Parliament and suchelection shall not be deemed to be void or ever to have become void oil aiWground on which such election could be declared to be void, or has, beforesuch commencement, been declared to be void under any such law and

252 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVlI

notwithstanding any order made by any court, before such commencement,declaring such election to be void, such election shall continue to be validin all respects and any such order and any finding on which such order isbased shall be and shall be deemed always to have been void and of noeffect.

(5) Any appeal or cross-appeal against any such order of any court asis referred to in clause (4) pending immediately before the commencementof the Constitution (Thirty-ninth Amendment) Act, 1975 before the SupremeCourt shall be disposed of in conformity with the provisions of clause (4).

(6) The provisions of this Article shall have effect notwithstandinganything contained in this Constitution."

The respondent contended that clause (4) of Article 329-A (hereinafterreferred to as 'clause (4)') is invalid for the reason that some of the basicstructures of the Constitution have been damaged by its enactment

The argument was that although the amending body could declare thatthe election of the appellant shall not be deemed to be void and judgmentof the High Court to be void on the basis that no law relating to electionpetition and matters connected therewith would apply to the election, yetthe amending body could not have held the election to be valid as it didnot ascertain the facts relating to the election and apply the relevant lawto them. Counsel submitted that by its very nature, an election disputein a democratic system of government raises questions which can be decidedonly by the exercise of judicial power; that by retrospectively rendering theforum for investigation into the complaints regarding the validity of theelection, of the appellant coram non judice and by the amending bodyjudging its validity without ascertaining the fact and applying the relevantlaw, the Amendment has fundamentally damaged an essential feature of thedemocratic structure of the Constitution, namely free and fair election.

Counsel also submitted that equality and rule of law are essentialfeatures of democracy; that clause (4) by dispensing with the application ofthe law relating to election petition and matters connected therewith to theappellant, made an unreasonable classification among persons similarlysituated with reference to the purpose of the law.

The further submission was, that separation of powers is a basicstructure of the Constitution and that if it be supposed that the amendingbody ascertained the facts regarding the election of the appellant andapplied the relevant law, the exercise of that power by the amending bodywould offend the doctrine of separation of powers and that, at any rate,this process would not result in an amendment of the Constitution by enact-ing a law, but only in the passing of a judgment or sentence which cannever be characterized as a law, let alone a law relating to the Constitutionof India.

In His Holiness Kesavananda Bharati Sripadagalavaru v. State of Keralaand another etc. [(1973), Supp. S. C. R. 1] (hereinafter referred to as 'Bharati'scase') a majority of seven judges held that the power conferred under Article368 of the Constitution was not absolute. They took the view that, by anamendment, the basic structures of the Constitution, cannot be damagedor destroyed. And. as to what are the basic structures of the Constitution,illustrations have been given by each of these judges. They includesupremacy of the Constitution, democratic republican form of government,secular character of the Constitution, separation of powers among the


legislature, executive and judiciary, the federal character of the Constitution,Rule of Law, equality of status and of opportunity; justice, social economicand political; unity and integrity of the nation and the dignity of theindividual secured by the various provisions of the Constitution. There wasconsensus among these judges that democracy is a basic structure of theConstitution. I proceed on the assumption that the law as laid down bythe majority in that case should govern the decision here, although I didnot share the view of the majority.

Therefore, if by clause (4), any essential feature of the democraticrepublican structure of our policy as visualized by the Constitution hasbeen damaged or destroyed, the clause would be ultra vires the Constitution.

One way of looking at the first part of clause (4) is that the amendingbody has, with retrospective effect, repealed the law relating to electionpetition in respect of the persons specified in clause (i) and hence thejudgment rendered on the basis of the previous law relating to electionpetition became automatically void, and the amending body was merelystating the consequence of the retrospective repeal of the law and thereforethe declaration that the judgment was void was not an exercise of iudicialfunction. On the other hand, it might be possible to view the first part ofclause (4) as an exercise of judicial power for the reason, that even assum-ing that by virtue of the retrospective repeal of the law relating to electionpetition, there was no jurisdiction in the High Court to entertain or try theelection petition and pass the judgment, a repeal simpliciter did not lenderthe judgment ipso facto void and therefore, in making the declaration thatthe judgment was void, the amending body was performing a functionwhich has traditionally been in the province of Court.

Be that as it may, I feel no doubt that the amending body, when itdeclared the election of the appellant to be valid, had to ascertain theadjudicative facts ["Adjudicative facts are facts about the parties or theiractivities, businesses and properties usually answering the questions of whodid what, where when, how, why, with what motive or intent; adjudicativefacts are roughly the kind of facts that go to a jury in a jury case. Legislativefacts do not usually concern the immediate parties but are general factswhich help the tribunal to decide questions of law, policy and discretion.

Facts pertaining to the parties and their activities that is, adjudicativefacts are intrinsically the kind of facts that ordinarily ought not to bedetermined without giving the parties a chance to know and to meet anyevidence that may be unfavourable to them, that is without providing theparties an opportunity for trial." (See K. C. Davis : "The Requirementof a Trial-type Hearing", 70 Harv. L. Rev. 193 at p. 19-9).1] and apply therelevant norm for adjudging its validity. If, however, the amending bodydid not ascertain the facts relating to the election and apply the relevantnorm, the declaration of the validity of the election was a fiat of a suigeneris character of the amending body.

The concept of democracy as visualized by the Constitution presupposesthe representation of the people in parliament and State legislatures by themethod of election. And, before an election machinery can be broughtinto operation, there are three requisites which require to be attended to,namely, (1) there should be a set of laws and rules making provisions withrespect to all matters relating to, or in connection with, elections and itshould be decided as to how these laws and rules are to be made; (2) thereshould be an executive charged with the duty of securing the due conduct


of elections; and (3) there should be a judicial tribunal to deal with disputesarising out of or in connection with elections. Articles 327 and 328 dealwith the first of these requisites article 324 with the second and articl,- 329Namakkal Constituency and Others). [1952 S. C. R. 218 at p. 229.]Namakkal ConsMtueiuy and Others). [1952 S. C. R. 218 at p. 229.]

Article 329i//) envisages the challenge to an election by a petition to bepresented to such authority as the Parliament may, by law, prescribe. Alaw relating to election should contain the requisite qualifications forcandidates, the method of voting, definition of corrupt practices by thecandidates and their election agents, the forum for adjudication of electiondisputes and other cognate matters. It is on the basis of this law that thequestion whether there has been a valid election has to be determined bythe authority to which the petition is presented. And, when a dispute israised as regards the validity of the election of a particular candidate, theauthority entrusted with the task of resolving the dispute must necessarilyexercise a judicial function, for the process consists of ascertaining the factsrelating to the election and applying the law to the facts so ascertained. Inother words, it is obvious that a power must be lodged somewhere to judgethe validity of the election, for otherwise, there would be no certainty as towho were "legitimately chosen as members and any intruder or usurper mightclaim a seat and thus trample upon the privileges and liberties of thepeople. Indeed, elections would become, under such circumstances, amockery. In whichever authority the power is lodged, the nature of thefunction is such that it requires a judicial approach. It cannot be resolvedon considerations of political expediency.

It was contended for the appellant that, in England, it was the Houseof Commons which originally decided election disputes concerning itsmembers, that it was only in 1770 that the function was delegated tocommittees and, therefore, parliament is the proper forum for decidingelection disputes of its members as it is one of its privileges. I think, atthe time our Constitution was framed, the decision of an election disputehad ceased to be a privilege of the House of Commons in England andtherefore, under Article 105 (3) it could net be a privilege of parliamentin this country.

Before the year 1770, controverted elections were tried and determinedby the whole Hou.;e of Commons as mere party questions upon which thestrength of contending factions might be tested. "In order to prevent sonotorious a perversion of justice, the House consented to submit the exerciseof its privilege to a tribunal constituted by law, which, though composed ofits own members, should be appointed so as to secure impartiality and theadministration of justice according to the laws of the land under the sanctionof oaths". The principle of the Grenyille Act, and of others which werepassed at different times since 1770 was the selection by lot of committeesfor the trial of election petitions. And, at present, by Part III of theRepresentation of the People Act, 1949, the trial of controverted electionsis confided to judjes selected from the judiciary in the appropriate part ofthe United Kingdom. Provision is made in each case for constituting g rotafrom whom these judges ars selected. The House has no cognizance ofthese proceedings until their determination, when the judge:, certify iheirdetermination. The Judges are to make a report in any case where a chargehas been made in the petition of corrupt and illegal practice having beencommitted at an election; and they may also make a special report on anymatter arising which they think should be submitted to the House SeeErskine Mays Parliamentary Practice. [18th Edition (1971) pp. 29—31.]


Article 1, section 5(1) of the Constitution of the United States 01America provides that each House shall be the judge of the elections, returnsand qualification;; of its own members.

In whichever body or authority, the jurisdiction is vested, the exerciseof the jurisdiction must bo judicial in character. This Court has held thatin adjudicating an election dispute an authority is performing a judicialfunction and a petiton for leave to appeal under Article 136 of the Consti-tution would lie to this Court against the decision notwithstanding theprovisions of Article 329 (/>) [See Durga Shankar Mehta v. Thakur RathurajSingh and others (1955) ] 1 S. C. R. 267.

In Barry v. United States Ex Rel. Cunningham 73 L. Ed. 867 it was heldthat in exercising the power to judge of the election returns and qualificationsof members, the senate acts as a judicial tribunal.

It might be that if the adjudication of election disputes in respect ofits members had been vested in each of the Houses of Parliament by theConstitution, the decision of the House would have been final. That wouldhave been on the basis of the doctrine of the political question, namely,that the function has been exclusively committed textually to another agency.I am aware that the doctrine of political question has no hospitable quarterin this Court since the decision in Madhav Rao Scindia v. Union (1971)A. I. R. S. C. .530. But I venture to think that the doctrine alone canexplain why the courts abstain from interfering with a verdict on animpeachment of the President for violation of the Constitution, a functionessentially judicial (See Wechsler : Toward Neutral Principles of Constitu-tional Law. 37 Harv. L. Rev. 1 at pp. 7—-9.).

An election dispute has a public aspect in that it is concerned morewith the right of a constituency to be represented by a particular candidate.But it does not follow from the public character of the controversy thatthere is no Us between the parties to the election contest, and that the Uscan be resolved otherwise than by ascertaining the facts relating to theelection, and applying the relevant law :

"A judicial inquiry investigates, declares and enforces liabilities as theystand on present or past facts and under laws supposed alreadyto exist. This is its purpose and end. Legislation, on the otherhand, looks to the future and changes existing conditions by makinga new rule, to be applied thereafter to all or some part of thosesubject to its power." (Justice Holmes in Prentis v. Atlantic CoastLine Co. 211 U. S. 210, at 226.).

The Privy Council had occasion to consider this question in UnitedEngineering Workers Union v. Devanayagain (1963) A. C 356. Thejudgment of the majority was delivered by Lord Dilhorne, Lord Guest andLord Devlin dissented. The question in the case was whether the Presidentof a Labour Tribunal in Ceylon was the holder of a judicial office. If so,as the man in question had not been appointed in the way the Constitutionof Ceylon required for appointments of judicial officers, whether the tribunalwas without jurisdiction. It is clear from the judgment of their Lordshipsof the minority that judicial power is the exercise of a power on the basisOL pre-existing lav/. At pn. 384-385, their Lordships said :

"Another characteristic of the judicial power is that it is concerned withexist ins rights, that is, those which the parties actually have at theinception of the suit and not those which it may be thought theyought to have; it is concerned with the past and the present andnot with the future."


According to the historic analysis, the essence of the distinction bet-ween legislative power and judicial power is that the legislature makes newlaw which becomes binding on all persons over whom the legislature exer-cises legislative power: the judicature applies already existing law in theresolution of disputes between particular parties ; and judges may not de-viate from this duty. This view of the distinction between the obligationto apply and enforce rules and a discretion to modify rules or make newrules was at one time applied uncompromisingly in describing functions aslegislative or judicial. Thus De Lolme said "that courts of equity as thenexisting in England had a legislative function. They are, he said, a kindof inferior experimental legislature, continually employed in finding out andproviding law remedies for those new species of cases for which neither thecourts of common law, nor (he legislature have as yet found it convenientor practicable tp establish any. [See the Constitution of England, New Ed.(1800), p. F49]. Though this would show that neither for logic nor inlanguage has the boundary between legislation and adjudication ever beenrigidly and clearly drawn, the distinction between the two is wellestablished.

If, therefore, the decision of the amending body that the election of theappellant was valid was the result of the exercise of judicial power or ofdespotic discretion governed solely by considerations of political expedi-ency, the question is whether that decision, though couched in the form ofan enactment, can be characterized as an amendment of the Constitution.

The constituent power is the power to frame a constitution. The peopleof India, in the exercise of that power, framed the Constitution and it enactsthe basic norms. By that instrument, the people conferred on the amendingbody the power to amend by way of addition, variation or repeal any of i'Kprovisions (Article 368). It is not necessary to go in detail into the questionwhether the power to amend is co-extensive with the constituent power ofthe people to frame a constitution. In Bharati's case, (1973 Supp. S. C. R.1 at p. 794), I said:

".... under the Indian Constitution, the original sovereign—thepeople—created, by the amending clause of the Constitution, alesser sovereign, almost co-extensive in power with itself. Thissovereign, the one established by the revolutionary act of the fullor complete sovereign has been called by Max Radin, the 'pro-sovereign', the holder of the amending power under theConstitution."

I fully appreciate that 'sovereign', if conceived of as an omnipotent be-ing, has no existence in the real world. Several thoughtful writers have de-precated the use of the expression in legal discussion as it has theological andreligious overtones. Nevertheless, as the practice has become inveterate,it will only create confusion if any departure is made in this case from thepractice. If it is made clear that sovereign is not a 'mortal God' and canexpress, himself or itself only in the manner and form prescribed by lawand can be sovereign only when he or it acts in a certain way also prescribedby law, then perhaps the use of the expression will have no harmfulconsequence.

" 'Legal sovereignty' is a capacity 'to determine the actions of personsin certain'intended ways by means of a law where the actions of thosewho exercise the authority, in those respects in which they do exercise it,are not subject to any exercise by other persons of the kind of authority


which they are exercising." [See W. J. Rees: "The Theory of Sovereignty• Restated" in Mind. Vol. lix (1950) quoted at p. 68 of 'in Defence of Sove-

reignty', ed. W. J. Stankiewicz].

The point to be kept in mind is that the amending body which exercisesth e constituent power of the legal sovereign, though limited by virtue ofthe decision in Bhamti's case, can express i'tself only by making laws.

The distinction between constitutional law and ordinary law in a rigidconstitution like ours is that the validity of the constitutional law cannotbe challenged whereas that of ordinary law can be challenged on the touch-stone of constitution. But constitutional law is as much law as ordinarylaw. A constitution cannot consist of a string of isolated dooms. A judg-ment or sentence which is the result of the exercise of judicial power or ofdespotic discretion is not a law as it has not got the generality which is anessential characteristic of law. A despotic decision without ascertaining thefacts of a case and applying the law to them, though dressed in the garb oflaw, is like a bill of attainder. It is a legislative judgment.

According to Blackstone, a law and a particular command are distin-guished in the foliowing manner: a law obliges generally the members ofa given community, or a law obliges generally persons of a given class. Aparticular command obliges a single person or persons, whom it determinesindividually. Most of the laws established by political superiors are, there-fore, general in a twofold manner: as enjoining or forbidding generally actsof kinds or sorts ; and as binding the whole community, or, at least, wholeclasses of its members. He then said:

"Therefore, a particular act of the legislature to confiscate the goodsof Titus, or to attaint him of hrgh treason, does not enter into theidea of a municipal law: for the operation of this act is spent uponTitus only and has no relation to the community in general: it israther a sentence than a law." (See Blackstone Commentaries..Vol. 1, p. 44).

This passage was cited with approval by the Privy Council in Liydnaqev. The Queen [(1967) 1. A. C. 259 at 291] to show that the end product ofthe exercise of judicial power is a judgment or sentence and not a law.

St. Thomas Aquinas (after considering the views of Aristotle, St. Augus-tine and the opinion of jurists in pandects) has said that since the end oflaw is common good the law should be framed not for private benefii butfor the common good of all citizens. [See "The Treatise on Law", Gate-way Edition (1970), p. 87].

Rousseau wrote (Contract Social, BK. II Chap. VI).

"When I say that that object of laws is always general, I mean thatthe law considers subjects collectively and actions as abstract;never a man as an individual, nor an action as particularneither is what the sovereign himself orders about a particularobject a law but a decree; not an act of sovereignty, but ofmagistracy."

Austin draws an explicit distinction between 'laws' and 'particular com-mands'. Where a command, he says, obliges generally to acts or forbear-ances of a class, a command is a law or rule. But where it obliges to aspecific act or forbearance, a command is occasional or particular. (SeeAustin's Jurisprudence, 2nd Ed., Vol. I, p. 18).


Kelsen, after noting the distinction made by Austin has observed:

"We can of course recognize as law only general norms. But there isno doubt that law does not consist of general norms only. Lawincludes individual norms, i.e., norms which determine the be-haviour of one individual in one non-recurring situation and whicji,therefore, are valid only for one particular case and may be obeyedor applied only once."

According to him, such norms are valid law because they are parts of thelegal order as a whole in exactly the same sense as those general normson the basis of which they have been created. He said that particular normsare the decisions of courts as far as their binding force is limited to theparticular case at hand and that a judge who orders a debtor A to return$ 1000 to his creditor B was passing a law [Kelsen: General Theory of Lawand State (1961), p. 38].

It may be noted that Kelsen made no distinction between law-creationand law-application. According to him, every act of applying the law , in-volved the creation of norms. In his view, there was no distinction betweencreation and application of law, a view I find difficult to accept in the liglilof clear distinction made bv the decisions of this Court between legislativeand judicial functions.

A statute is a general rule. A resolution by the Legislature th:.i atown shall pay one hundred dollars to Timothy Coggan is not a Uuiute.(John Chipman Gray: Nature and Source of Law, p. 161).

The mere fact that an Act* to indemnify A or an Act sanctioning apension to the speaker is passed b.y the House of Commons in Englandshould not lead us to conclude that it is law. "The English Legislature wasoriginally constituted, not for legislative, but for financial purpose;. Itsprimary function was, not to makt ,aws. but to grant supplies". [Coune-nay Ilbert, Legislative Methods and Forms (Oxford, 1901),* p. 208].

J. C. Carter has said that statute books contain vast masses of matterwhich, though in the form of laws, are not laws in the proper sense, thatthese consist in the making of provisions for the maintenance of publicworks of the State, for the building of asylums, hospitals, school buses anda great variety of similar matters, and that this is but the record of actionsof the State in relation to the business in wh'ich it is engaged. Accordingto him, the State is a great public corporation which conducts a vast massof business, and the written provisions for this, though in the form of laws,are not essentially different from the minutes of ordinary corporate bodiesrecording their actions. [Law, its Origin, Growth and Function (New Yorkand London, 1907), p. 116].

Walter Bagehot has said :

"An immense mass, indeed of the legislation is not, in the properlanguage of jurisprudence, legislation at all. A law is a generalcommand applicable to many cases. The 'special acts' -which crowdthe statute book and weary parliamentary committees are <"ppm-able to one case only. They do not lay dovn rules according towhich railways shall be made, but enact that such and such a rail-way shall he-made from this place *o that place, and they have nobearing on any other transaction". ["The English Constitution"(1967)~World's Classics Edition-(Oxford, 1928), p. 119].

£,L.R.] SMT. INDIRA NEHRU GANDHI V. SHRl RAJ NARA1N 2 5 9

"When the authors of books on jurisprudence write about law, whenprofessional lawyers talk about law, the kind of law about "whichthey are mainly thinking is that which is found in Justinian's Insti-tutes, or in the Napoleonic, Codes, or in -the New Civil Code of theGerman Empire, that is to say, the legal rules which relate to con-tracts and torts, to property, to family relations and inheritance, orelse to law of crimes as is to be jound in a Penal Code". [SeeCourtenay Ilbert, Legislative Methods and Forms (Oxford, 1901),

• p. 209.]-

John Locke was of the view that 'legislative authority is to .act in aparticular way (and) those who weiled this authority should makeonly general rules. They are to govern by promulgated established lawsnot to be varied in particular cases'. [See the passage quoted at p. 129 ofHayek : Law, Legislation aa3 Liberty].

Perhaps the most exhaustive treatment of the question of the necessityfor generality in law is to be found in "Jurisprudence, Men and Ideas ofthe Lav/" by Patterson (See Chapter V). According to him, the generalityof a law depends upon its being applicable to an indefinite number of hu-man beings and that is the most significant aspect of law. He said that anordinary judgment of a court is not law as a" judgment applies only to alimited number of individuals, the parties to the case. He disagreed withDr. Kelsen's statement that the judicial decision is an individual legal 'nonnas the expression 'individual legal norm' is a self-contradition.

To Friedmani, the most essential element in the concept of law is adegree of generality :

"The first desideratum of a systftn for subjecting human conduct tothe govesance of rules is an obvious one : there must be rules.This may be stated as a requirement of generality. Here as in somany other fields, John Austin's distinction was basically right,but too rigidly drawn."

Friedmann was of the view that a community which had no general pres- •cription at all, but only an infinite multitude of individual commands, wouldnot be regarded as having a legal order. It would dissolve into millions ofindividual relationships. [(Friedmann: "Legal Theory" 5th ed., pp. 15-16.See also. Lon. L. Fuller : "The Morality of Law" pp. 46—49).]

For the purpose of this case I accept as correcf the statement of Black-stone already quoted and approved by the Privy Council in Liycmge v. TheQueen (supra) I cannot regard the resolution of an election dispute by theamending, body as law : Tt is either a judicial sentence or a legislative judg-ment like a Bill of Attainder.

It is no doubt true that the House of Commons in England used topass bills of attainder. But the practice has fallen into desuetude,' since•he year 1696. A bill of attainder is a special act of the legislature, asinflict capital punishments upon persons supposed to be guiity of highoffences, such as treason and felony without any conviction in the ordinarycourse of judicial proceedings. The legislature assumes jiiclical magistracy,pronouncing upon the guilt of the party without any of the' common formsand guards of trial, and satisfying itself with proofs, when such proofs arewithin its reach, whether they are conformable to the rules of evidence ornot. In short, in all such cases, (he legislature exercises the highest powerof sovereignty, and what may be properly deemed an irresponsible despotic


discretion, being governed solely by what it deems political necessity orexpendiency, and too often under the influence of unreasonable fears, orunfounded suspicions. [See 3 J. Story, Commentaries on the Constitutionof the United States (Boston, 1833), s. 1338].

In U. S. v. Brown 381 U. S. 437 the Supreme Court of United States ofAmerica stated that the main reason why the power to pass bill of attainderwas taken away from the Congress was:

"Every one must concede that a legislative body, from its numbers andorganisation, and from the very intimate dependence of its membersupon the people, which renders them liable to be peculiarly suscep-tible to popular clamour, is not properly constituted to try_ withcoolness, caution, and impartiality a, criminal charge especially inthose cases in which the popular feeling is strongly excited—thevery class of cases most likely to be prosecuted by this mode". [SeeCooley, Constitutional Limitations, pp. 536-537. 8th ed., (1927)1.Macaulay's account of the attainder of Sir John Fenwick in 1690.the last in the Ministry of the House of Commons, is particularlyvivid :

"Some hundreds of gentlemen, every one of whom had much morethan half made up his mind before the case was open ; performedthe office both of judge and jury. They were not restrained, as ajudge is restrained, by the sense of responsibility. . . . They werenot selected, as a jury is selected, in a manner which enables aculprit to exclude his personal and political enemies. The arbitersof the prisoner's fate came in and went out as they chose. Theyheard a fragment here and thereof what was said against him, anda fragment here and there of what was said in his favour. Duringthe progress of the bill they were exposed to every species of in-fluence. One member might be threatened by the electors of hisborough with the loss of his seat. . . In the debates arts werepractised and passions excited which are unknown to weli con-stituted tribunals, but from which no great popular assembly divid-ed into parties ever was or ever will be free".

[IX Macaulay, History of England, p. 207 (1900)].

Much the same reason will apply to the resolution of an election dis-pute by an amending body as it consists, in all democratic countries, of anassembly of persons like parliament.

In Liyanage v. The Queen {supra) the appellants had been chargedwith offences arising out of an abortive coup d'etat on January 27, 1962.The story of the coup d'etat was set out in a White Paper, issued by theCeylon Government. On March 16, 1962 the Criminal Law (Special Pro-visions) Act was passed and it was given retrospective effect from January 1,1962. The Act was limited in operation to those who were accused ofoffences against the State in or about January 27, 1»962. The Act legalisedthe imprisonment of the appellants while they were awaiting trial, andmodified a section of the Penal Code so as to enact ex post facto a newoffence to meet the circumstances of the abortive coup. The Act empower-ed the Minister of Justice to nominate the three judges to try the appellantswithout a jury. The validity oi the Act was challenged as well as the nomi-nation which had been made by the Minister of Justice of the three judges.The Ceylon Supreme Court upheld the objection about the vires of some


of the provisions of the Act as well as the nomination of the judges. Subse-quently, the Act was amended and the power of nomination of the judgeswas conferred on the Chief Justice. The appellants having been convictedat the trial before a court of three judges nominated under the amended Act,went up in appeal before the Judicial Committee. It was contended that•the Acts of 1962 offended against the Constitution in that they amounted toa direction to convict the appellants or to a legislative plan to secure theconviction and severe punishment of the appellants and thus constitutedan unjustifiable assumption of judicial power by the Legislature, or an inter-ference with judicial power which was outside the Legislature's competence.

The Privy Council said in the course of their judgment that the pithand substance of the law enactments was a legislative plan ex post facto tosecure the conviction, that although legislation ad hominem which is direct-ed to the course of particular proceedings may not always amount to aninterference with the functions of the judiciary, but in the present case theyhad no doubt that there was such interference that it was not only the likelybut the intended effect of the impugned enactments and that it was fatalto their validity. They further said that the true nature and purpose ofthese enactments were revealed by their conjoint impact on the specificproceedings in respect of which they were designed, and they took theircolour, in particular from the alterations they purported to make as to theirultimate objective—the punishment of those convicted—and that these altera-tions constituted a grave and deliberate incursion into the judical sphereand then, they quoted with approval the observations of Blackstone alreadyreferred to (See Blackstone Commentaries Vol. 1, p. 44), These observa-tions have great relevance to the case in hand. True it is that their Lord-ships did not decide the question whether by a constitutional amendmentthe result could have been achieved or not.

At the time when the amendment was passed, the appeal filed by theappellant and the cross appeal of the respondent were pending before theSupreme Court. Clause (4) was legislation ad hominem directed againstthe course of the hearing of the appeals on merits as the appeal and thecross appeal were to be disposed of in accordance with that clause and notby applying the law to the facts as ascertained by the court. This was adirect interference with the decision of these appeals by the Supreme Courton their merits by a legislative judgment.

If the amending body really exercised judicial power, that power wasexercised in violation of the principles of natural justice of audi alterantpartem. Even if a power is given to a body without specifying that therules of natural justice should be observed in exercising it, the nature of thepower would call for its observance.

The Solicitor General contended that the amending body, in declaringthat the election was valid, was exercising its consfitutent legislative power ;that legislative power does not adjudicate but only creates validity, evenretrospectively, by enacting a law with that effect ; that validation is law-making ; that it alters the legal position by making new law and that valida-tion may take place before or after a judgment. He said that by the repealof the provisions of the Representation of the People Act, 1951, the amend-ing body had wiped out not only the election petition but also the judg-ment of the High Court and has deprived the respondent of the right toraise any dispute as regards the validity of the election of the appellant and,therefore, there was no dispute to be adjudicated upon by the amendingbody. He also said—I think, in the alternative that although the law relating

18—345 Elec. Com./ND/81

2 6 2 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. J,VII

to election petitions and other matters connected therewith was dis-pensed with in respect of the appellant, the amending body had the idealnorms of fair and free election in its view for adjudging the validity of theelection. He submitted that it was open to the amending body to gatherfacts from any source and as the facts collected by the High Court werethere factually, the amending body looked into them and applied the idealnorms of election for adjudging its validity.

It is difficult to understand, when the amending body expressly ex-cluded the operation of all laws relating to election petition and mattersconnected therewith by the first part of clause (4), what ideal norms of freeand fair election it had in view in adjudging the validity of the election ofthe appellant. I cannot conceive of any pre-existing idejil norms of electionapart from the law enacted by the appropriate Legislatures. If the amend-ing body evolved new norms for adjudging the validity of the particularelection, it was the exercise of a despotic power and that would damage thedomocratic structure of the Constitution.

Quite apart from it, there is nothing on the face of the amendment toshow that the amending body ascertained the facts of the case or appliedany norms for determining the validity of the election. I do not think thatunder Article 368 the amending body was competent to pass an ordinarylaw with retrospective effect to validate the election. It can only amendthe Constitution by passing a law of the rank of which the Constitution ismade of.

There is also nothing to show that the amending body validated theelection with reference to any change of the law which formed the founda-tion of the judgment. The cases cited by the Solicitor General to showthat a competent Legislature has power to validate an invalid election donot indicate that there can be a validation without changing the law whichinvalidated the election. Nor do I think that a contested election can bevalidated without an authority applying the new law to the facts as ascer-tained by judicial process. If the court which ascertained the facts andapplied the law was rendered eoratn non judice, the facts ascertained by ithave ceased to be facts;. There are no absolute or immediately evidentfacts. Only by being first ascertained through legal procedure are factsbrought into the sphere of law or, we may say, though it may sound para-doxical, that the competent organ legally creates facts. The courts performa constitutive function in ascertaining facts. There is no fact 'in itselfthat A has killed B. There is only somebody's belief or knowledge. Theyare all private opinions without relevance. Only establishment by a com-petent organ has legal relevance {See Kelson : General Theory of Law andState, p. 136). And, when that organ was rendered coram nou judice, andits judgment declared void, the facts created by it perished. They ceasedto be facts. Adjudicative facts of an election dispute cannot be gatheredby legislative process behind the back of the parties; they can be gatheredonly by judicial process. The amending body did not ascertain the factsby resorting to judicial process.

If clause (4) was an exercise in legislative validation without changingthe law which made the election invalid, when there ought to have beenan exercise of judicial power of ascertaining the adjudicative facts andapplying the law, the clause would damage the democratic structure of theConstitution, as the Constitution visualizes the resolution of an election dis-pute by a petition presented to an authority exercising judicial power. Thecontention that there was no election dispute as clause (4) by repealing the


law relating to election petition had rendered the petition filed by the res-pondent non est, if allowed, will toll the death knell of the democraticstructure of the Constitution. If Article 329(Z>) envisager the resolution ofan election dispute by judicial process by a petition presented to an autho-rity as the appropriate Legislature may by law provide, a constitutionalamendment cannot dispense with that requirement without damaging anessential feature of democracy, viz., the mechanism for determining the realrepresentative of the people in an election as contemplated by theConstitution.

All the cases cited by the Solicitor General pertain either to legislativevalidation of a void election by applying a new law to undisputed factsor to the removal of an admitted disqualification by a law with retrospectiveeffect.

In Abeyesekera v. Jayatilake (1932 A.C. 260), the facts were: An Orderin Council of 1923 made provision as to Legislative Council in Ceylon, butreserved to His Majesty power to revoke, alter or amend the order. Theappellant, as common informer brought an action to recover penalties underthe order from the respondent, who he alleged had sat and voted after hisseat had. become vacant under its provisions by reason of his having apecuniary interest in a contract with the Government. In 1928, after theaction had been brought but before its trial, an amending order in Councilwas made which provided: "if any such action or legal proceeding hasbeen or shall be instituted it shall be dismissed and made void, subject tosuch order as to costs as the Court may think fit to make". If also amend-ed the Order of 1923 so as to except office held by the respondent from itsoperation.

The Privy Council held that the Order of 1928 was valid, having regardto the power reserved by the Order of 1923, and was an effective defenceto the action, although it was retrospective in its operation and that thiswas no exercise of judicial power. The direction to dismiss must be under-stood in the light of an earlier provision in the same Order in Councilwhich amended the law on which the proceeding was founded ; the dis-missal was thus the result of the change in the law and all that the laterclause was that the change was to have retrospective effect and govern therights of parties even in pending proceedings. The decision would be help-ful here only if and in so far as the provision in clause (4) had followedfrom a change in any rule of law.

The decision in Piare Dusadh and others v. King Emperor (1944P. C. R. 61), concerned the validation of a sentence imposed by a specialcriminal court which was held to have no jurisdiction to try the case by anorder of a court. By a validation Act the jurisdiction was conferred withretrospective effect on the special criminal court and the sentence imposedby it was made lawful. It was held that there was no exercise of any judi-cial power by the legislating authority.

In Kanta Kathuria v. Manak Chand Surctna [(1970) 2 S. C. R. 8350 theappellant, a government advocate stood for election to the State LegislativeAssembly of Rajasthan and was declared elected. The election was chal-lenged and the ground of challenge was that the appellant held an officeof profit within the meaning of Article 191 of the Constitution. The HighCourt set aside the election for that reason. While the appeal was pendingin this Court, Rajasthan Act 5 of 1969 was passed declaring among othersthat the holder of the office of a Special Government Pleader was not dis-qualified from being chosen or for being a member of the State Legislative


Assembly ; and, by s. 2(2), the Act was made retrospective removing theappellant's disqualification retrospectively. It was held that Act 5 of 1969had removed the disqualification retrospectively, that Parliament and theState Legislatures can legislate retrospectively subject to the provisions ofthe Constitution, that no limitation on the powers of the Legislature tomake a declaration validating an election could be put, and that, by enact-ing the impugned Act, the disqualification if any which existed in the 1951Act had been removed.

In State of Orissa v. Bhupendra Kumar Bose (1-962 Supp. 2 S. C R.s380), 33 the facts were as follows: Elections were held for the CuttackMunicipality and 27 persons were declared elected as councillors. One B,who was defeated at {he elections, filed a writ petition before the High Courtchallenging the elections. The High Court held that the electoral rolls hadnot been prepared in accordance with the provisions of the Orissa Munici-palities Act, 1950, as the age qualification had been published too latethereby curtailing the period of claims and objections to the preliminaryroll to two days from 21 days as prescribed ; consequently, the High Courtset aside the elections. The State took the view that the judgment affectednot merely the Cuttack Municipality but other municipalities also. Accord-ingly, the Governor promulgated an Ordinance validating the elections iothe Cuttack Municipality and validating the electoral rolls prepared inrespect of other municipalities. Thereupon, B filed a writ petition beforethe High Court contending that the Ordinance was unconstitutional. TheHigh Court found that {he Ordinance contravened Article 14 of the Consti-tution, that it did not successfully cure the invalidity and that it offendedArticle 254(1) of the Constitution as it was inconsistent with many CentralActs falling in the concurrent list and was unconstitutional. The State andthe Councillors appealed and challenged the findings of the High Court.

This Court held that section 3(1) of the Ordinance effectively removedthe defects in the electoral rolls found by the High Court by its judgmentand that it successfully cured the invalidity of the electoral roll and of theelections to the Cuttack Municipality.

The Solicitor General also cited other decisions to show that a Legis-lature can validate proceedings rendered invalid by judgment of court. AsI said, they all involved substitution of new law with retrospective effectfor the old one and the basic facts were all taken to have been admittedor not controverted. If the facts are not admitted, the Legislature cannotdetermine them except by employing judicial process. Besides, those casesbeing cases of legislative validation, need not pass the test of the theoryof basic structure which, I think, will apply only to constitutionalamendment.

Counsel for the appellant also brought to the notice of the court cer-tain election validation Acts passed by the House of Commons in England.These Acts removed with retrospective effect disqualifications of membersof Parliament. In none of these cases was an election which was being con-tested validated by Parliament. Nor can these instances of legislative re-moval of disqualification furnish any assistance to this Court for the reasonthat in England there is no theory of basic structure operating as a fetteron the power of Parliament.

It was argued for the respondent that if the amending body exercisedjudicial power and held the election of the appellant valid, its act wasunconstitutional also on the ground it damaged another basic structure ofthe Constitution, namely, the doctrine of separation of powers.

-E.L.fe.] SMT. INDIftA NEHRU (3ANDH1 V. S M l RAJ NARAlM 265

The major problem of hurrian society is io combine that degree ofliberty without which law is tyranny with that degree of law without whichliberty becomes licence ; and, the difficulty has been to discover the. practicalmeans of achieving this grand objective and to find the opportunity forapplying these means in the ever-shifting tangle of human affairs. A largepart of the effort of man over centuries has been expended in seeking a solu-tion of this great problem. A reign of law, in contrast to the tyranny ofpower, can be achieved only through separating appropriately the severalpowers of government. If the law-makers should also be the constant ad-ministrators and dispensers of law and justice, then, the people would beleft without a remedy in case of injustice since no appeal can lie under thefiat against such a supremacy. And, in this age-old search of political philo-sophers for the secret of sound government, combined with individual liberty,it was Montesquieu who first saw the light. He was the first among thepolitical philosopher who saw the necessity of separating judicial powerfrom the executive and legislative branches of government. Montesquieuwas the first to conceive of the three functions of government as exercisedby three organs, each juxtaposed against others. He realised that the effi-cient operation of government involved a certain degree of overlapping andthat the theory of checks and balances required each organ to impede toogreat in aggrandizement of authority by the other two powers. As Holds-worth says, Montesquieu convinced the world that he had discovered a newconstitutional principle which was universally valid. The doctrine of separa-tion of governmental powers is not a mere theoretical, philosophical concept.It is a practical, work-a-day principle. The division of government into threebranches does not imply, as its critics would have us think, three watertightcompartments. Thus, legislative impeachment of executive officers orjudges, executive veto over legislation, judicial review of administrative orlegislative actions are treated as partial exceptions which need explanation.(See generally : "The Doctrine of Separation of Powers and its Present DaySignificance", by T. Vanderbilf).

There can be no liberty where the legislative and executive powers areunited in the same person or body of magistrates, or, if the power of judg-ing be not separated from the legislative and executive powers. Jeffersonsaid : All powers of government—legislative, executive and judicial—resultin the legislative body. The concentration of these powers in the samehands is precisely the definition of despotic government. It will be no alle-viation that these powers will be exercised by a plurality of hands and notby a single person. One hundred and seventy-three despots would surely bsas oppressive as one. (See Jefferson: Works: 3: 223). And, Montesquieu'sown words would show that where the whole power of one department isexercised by the same hands which possess the whole power of anotherdepartment, the fundamental principles of a free constitution are subverted.In Federalist No. 47, James Madison suggests that Montesquieu's doctrinedid not mean that separate departments might have "no partial agency inor no control over the acts of each other". His meaning was, according toMadison, no more than that one department should not possess the wholepower of another.

The Judiciary, said the Federalist, is beyond comparison the weakestof the three departments of power. It has no influence over either the swordor the purse ; no direction either of the strength or of the wealth cf thesociety and can take no active resolution whatever. It may truly be saidto have neither force nor will, but merely judgment. Of the three powersMontesquieu said, the judiciary is in some measure next to nothing. If he

2 6 6 SMT. INDIRA NEHRU GANDHI V. SHRIRAJ NARAIN [VOL. LVIJT

realised the relative weakness of the judiciary at the time he wrote, it isevidence of his vision that he appreciated the supreme importance of itsindependence. There is no liberty, he said, if the judicial power be notseparated from the legislative and executive.

But this doctrine which is directed against the concentration of thesepowers in the same hand has no application as such when the question iswhether an amending body can exercise judicial power. In other words, thedoctrine is directed against the concentration of these sovereign powers inone or other organ of government. It was not designed to limit the powerof a constituent body.

Whereas in the United States or America and ia Australia, the .judicialpower is vested exclusively in courts, there is no such exclusive vesting ofjudicial power in the Supreme Court of India and the courts subordinateto it. And if the amending body exercised judicial power in adjudging thevalidity of the election, it cannot be said that by that act, it has damageda basic structure of the Constitution embodied in the doctrine of separa-tion of powers. Even so, the question will remain whether it could exjreisejudicial power without passing a law enabling it to do so. As I said, theexercise of judicial power can result only in a judgment or sentence. Theconstituent power, no doubt, is all embracing comprising within its ambitthe judicial, executive and legislative powers. But if the constituent poweris a power to frame qr amend a constitution, it can be exercised only bymaking laws of a particular kind.

The possession of power is distinct from its exercise. [See JacquesMaritain: "Man and State", pp. 101-102, also the judgment of Hidayatullah,J. in Golaknath v. Punjab, (1967) 2 S. C. R. 763]. The possession of legis-lative power by the amending body would not entitle it to pass an ordinarylaw, unless the Constitution is first amended by passing a constitutional lawauthorizing it to do so. In the same way, the possession of judicial powerby the amending body would not warrant the exercise of the power, unlessa constitutional law is passed by the amending body enabling it to do so.Until that is done, its potential judicial power would not become actual.No body can deny that by passing a law within its competence, Parliamentcan vest judicial power in any authority for deciding a dispute or vest apart of that power in itself for resolving a controversy, as there is no exclu-sive vesting of judicial power in courts by the Constitution. The doctrineof separation of powers which is directed against the concentration of thewhole or substantial part of the judicial power in the Legislature or theexecutive would not be a bar to the vesting of such a power in itself. But,until a law is passed enabling it to do so, its potential judicial power wouldnot become actual.

Lord Coke objected to the exercise of judicial power by James I forpragmatic reasons. Much of what Lord Coke said: On Sunday morning,November 10, 1607, there was a remarkable interview in Whitehall betweenSir Edward Coke, Chief Justice of the Common Pleas, and James I. Wehave only Coke's account of the interview and not the King's, but there isno reason to doubt its essential authenticity. The question between themwas whether the King, in his own person might take what causes he pleasedfrom the determination of the iudges and determine them himself. Thisis what Coke says happened : "Then the King said that he thought the lawwas founded upon reason and that he and others had reason as well as theJudges: to which it was answered by me, that true it was that God hadendowed His Majesty with excellent science and great endowments of na-ture, but ffis Majesty was not learned in the laws of his realm of England,


and causes which concern the life, or inheritance, or goods, or fortunes ofhis subjects, are not to be decided by natural reason but by the artificialreason and judgment of law, which law is an act which requires long studyand experience before that a man can attain to the cognisance of it, andthat the law was the golden metwand and measure to try the causes oi thesubjects ; and which protected His Majesty in safety and peace: with whichthe King was greatly offended, and said, that then he should be under thelaw which was treason to affirm, as he said: to which I said that Bractonsaith, quod Rex non debet esse sub homine sed sub Deo et lege," It wouldbe hard to find a single paragraph in which more of the essence of Englishconstitutional law and history could be found. The King ought not to bounder a man, non debet esse sub hpmine, but under God and the law, sedsub Deo et lege. (See R. F. V. Heuston: Essays in Constitutional Law,second edition, pp. 32-33) can be applied to parliament when it seeks toexercise that power in its constituent capacity.

A sovereign in any system of civilized jurisprudence is not like anoriental despot who can do anything he likes, in any manner he likes andat any time he likes. That the Nizam of Hyderabad had legislative, judi-cial and executive powers and could exercise any one of them by a finnanhas no relevance when we are considering how a pro-sovereign—the holderof the amending power—in a country governed by a constitution shouldfunction. Such a sovereign can express 'himself only by passing a parti-cular kind of law ; and not through sporadic acts. 'He' cannot pick andchoose cases according to his whim and dispose them of by administering'cadi-justice' ; nor can the amending body, as already noticed, pass an ordi-nary law, as Article 368 speaks of the constituent power of amending byway of addition, variation or repeal, any provision of the Constitution inaccordance with the procedure laid down in that Article. An ordinary lawcan be passed by it only after amending the provisions of the Constitutionauthorizing it to do so.

If the basic postulate that a sovereign can act only by enacting lawsis correct, then that is a limitation upon his power to do anything he likes.If I may re-phrase the classical statement of Sir Owen Dixon: the law thata sovereign can act only by law is supreme but as to what may be done bya law so made, the sovereign is supreme over that law. (See "Law and theConstitution" "50 Law Quarterly Rev. 590, 604). Of course, this is sub-ject to the theory of basic structure. In other words, even though a sovereigncan act only by making law, the law he so makes may vest the authorityto exercise judicial power in himself; without such law he cannot exercisejudicial power.

The result of the discussion can be summed up as follows: Our Con-stitution, by Article 329(6) visualizes the resolution of an election disputeon the basis of a petition presented to such authority and in such manneras the appropriate Legislature may, by law, provide. The nature of thedispute raised in an election petition is such that it cannot be resolvedexcept by judicial process, namely, by ascertaining the facts relating tothe election and applying the pre-existing law ; when the amending body-held that the election of the appellant was valid, it could not have done soexcept by ascertaining the facts by judicial process and by applying the law.The result of this process would not be the enactment of constitutional lawbut the passing of a judgment or sentence. The amending body, thoughpossessed of judicial power, had no. competence to exercise it, unless itpassed a constitutional law enabling it to do so. If, however, the decisionof the amending body to hold the election of the appellant valid was the

268 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVIl

result of the exercise of an 'irresponsible despotic discretion' governedsolely by what it deemed political necessity or expediency, then, like a billof attainder, it was a legislative judgment disposing of a particular, electiondispute and not the enactment of a law resulting in an amendment of theConstitution. And, even if the latter process (the exercise of despotic dis-cretion) could be regarded as an amendment of the Constitution, the amend-ment would damage or destroy an essential feature of democracy as estab-lished by the Constitution, namely, the resolution of election dispute by anauthority by the exercise of judicial power by ascertaining the adjudicativefacts and applying the relevant law for determining the real representativeof the people. The decision of the amending body cannot be regarded asan exercise in constituent legislative validation of an election for these rea-sons : first, there can be no legislative validation of an election when thereis dispute between the parties as regards the adjudicative facts ; the amend-ing body cannot gather these facts by employing legislative process ; theycan be gathered only by judicial process. Secondly, the amending bodymust change the law retrospectively so as to make the election valid, ifthe election was rendered invalid by virtue of any provision of the lawactually existing at the time of election ; Article 368 does not confer on theamending body the competence to pass any ordinary law whether with orwithout retrospective effect. Clause (4) expressly excluded the operationof all laws relating to election petition to the election in question. There-fore, the election was held to be valid not by changing the law which ren-dered it invalid. Thirdly, the cases cited for the appellant are cases relatingto legislative validation of invalid elections or removal of disqualificationwith retrospective effect. Being cases of legislative validation, or removalof disqualifications by legislature, they are not liable to be tested on thebasis of the theory of basic structure, which, I think is applicable only toconstitutional amendments. Fourthly, there was no controversy in thosecases v/ith regard to adjudicative facts: if there was controversy with regardto these facts, it is very doubtful whether there could be legislative valida-tion of an election by changing the law alone without ascertaining the ad-judicative facts by judicial process.

Then I come to the argument of counsel that equality is a basic struc-ture of the Constitution and that that has been damaged or destroyed byclause (4).

The Solicitor General submitted that the majority in Bharati's casedid not hold that Article 14 pertains to the basic structure, that apart fromArticle 14, there is no principle of equality which is a basic structure ofthe Constitution and that it is not a chameleon-like concept which changesits colour with the nature of the subject-matter to which it is applied.

The majority in Bharati's case did not hold that Article 14. pertainsto the basic structure of the Constitution. The majority upheld the validityof the first part of Article 31-C: this would show that a constitutionalamendment which takes away or abridges the right to challenge the validityof an ordinary law for violating the fundamental right under that Articlewould not destroy or damage the basic structure. The only logical basisfor supporting the validity of Articles 31-A, 31-B and the first part of 31-C,is that Article 14 is not a basic structure.

Counsel for the respondent, however, submitted that even if Article 14does not pertain to basic structure, equality is an essential feature of de-mocracy and rule of law and that clause (4), by dispensing with the appli-cation of the law relating to election petition and matters connected there-with to the appellant and another has made an unreasonable distinction

E.L.R.] SMT. INDIRA NEHRU GANDHi V. SHRI RAJ NARAIN 289

between persons similarly situated and has thereby damaged or destroyedthat essential feature, and therefore, the clause is bad. He said that in sofar as laws are general instructions to act or refrain from acting in certainways in specified circumstances enjoined upon persons of a specified kind,they enjoin uniform behaviour in identical cases, that to fall under a lawis pro tanto to be assimilated to a single pattern, and that a plea for ruleof law in this sense is, in essence, a plea for life in accordance with lawsas opposed to other standards, namely, the ad hoc dispensation from itsoperation. He argued that if some persons, for no stated reason, and inaccordance with no rule, obtain exemption from the operation of law,while persons who are sufficiently similar in relevant characteristics aregoverned by it, that is manifestly unfair, for, to allow some persons to dothat which is forbidden to all others is irrational.

Democracy proceeds on two basic assumptions:

(1) popular sovereignty in the sense that the country should be gov-erned by the representatives of the people, that all power camefrom them, at their pleasure and under their watchful supervisionit must be held ; and

(2) that there should be equality among the citizens in arriving at thedecisions affecting them. {See Robert A. Dahl :"A Preface toDemocratic Theory", pp. 4-33: and Bryce: Modern Democracies,Vol. II, p. 9).

Today, it is impossible to conceive of a democratic republican form ofgovernment without equality ol citizens. It is true that in the republicsof Athens and Rome there were salves who were regarded as chattels. And,even in the United States of America, there was a republic even before theNegroes were enfranchised. Our Constitution envisages the establishmentof a democratic republican form of government based on adult suffrage.

Equality is a multi-coloured concept incapable of a single definition.It is a notion of many shades and connotations. The preamble of the Con-stitution guarantees equality of status and of opportunity. They are nebu-lous concepts. And I am not sure whether they can provide a solid founda-tion to rear a basic structure. I think the types of equality which our demo-cratic republic guarantees are all subsumed under specific articles of theConstitution like Articles 14, 15, 16, 17, 25 etc. and there is no other prin-ciple of equality which is an essential feature of our democratic policy.

In the opinion of some of the judges constituting the majority inBharti's case, Rule of Law is a basic structure of the Constitution apartfrom democracy.

The rule of law postulates the pervasiveness of the spirit of law through-out the whole range of government in the sense of excluding arbitraryofficial action in any sphere. 'Rule of law' is an expression to give realityto something which is not readily expressible. That is why Sir Ivor Jenn-ings said that it is an unruly horse. Rule of law is based upon the libertyof the individual and has as its object, the harmonizing of the opposing no-tions of individual liberty and public order. The notion of justice main-tains the balance between the two ; and justice has a variable content.Dicey's formulation of the rule of law, namely, "the absolute supremacy orpredominance of regular law, as opposed to the influence of arbitrarypower excluding the existence of arbitrariness, of prerogative, even of widediscretionary authority on the part of the government" has been discarded


in the later editions of his book. That is because it was realized that i tis not necessary that where law ends, tyranny should begin. AsCulp Davis said, where the law ends, discretion begins and the exercise ofdiscretion may mean either beneficence or tyranny, either justice or injustice,,either reasonableness or arbitrariness. There has been no government orlegal system in world history which did not involve both rules and discre-tion. It is impossible to find a government of laws alone and not of menin the sense of eliminating all discretionary powers. All governments aregovernments of laws and of men. Jerome Frank has said:

"This much we can surely say: For Aristotle, from whom Harringtonderived the notion of a government of laws and not of men, thatnotion was not expressive of hostility to what today we call admi-nistrative discretion. Nor did it have such a meaning forHarrington."

[See "If men were Angels" (1942), p. 203.]

Another definition of rule of law has been given by FrieJrich A. Hayekin his books: "Road to Serfdom" and "Constitution of Liberty"'. It is muchthe same as that propounded by the Franks Committee in England: [Report(1957), p. 6].

"The rule of law stands for the view that decisions should be made bythe application of known principles or laws. In general such deci-sions will be predictable, and the citizen will know where he isOn the other hand there is what is arbitrary. A decision may bemade without principle, without any rules. It is, therefore, unpre-dictable, the anti-thesis of a decision taken in accordance with therule of law".

This Court said in Jaisinghani v. Union of India (1967) 2 S. C. R. 703,at 718, that the rule of law from one point of view means that decisionsshould be made by the application of known principles and rules and, ingeneral, such decisions should be predictable and the citizen should knowwhere he is.

This exposition of the rule of law is only the aspiration for an idealand it is not based on any down-to-earth analysis of practical problems withwhich a modern government is confronted. In the world of action, thisideal cannot be worked out and that is the reason why this exposition hasbeen rejected by all practical men.

If it is contrary to the rule of law that discretionary authority shouldbe given to government departments or public officers, then there is norule of law in any modern state. A judge who passes a sentence has noother guidance except a statute which says that the person may be sentencedto imprisonment for a term which may extend to, say, a period of tenyears. He must exercise considerable discretion. The High Courts andthe Supreme Court overrule their precedents. What previously announcedrules guide them in laying down the new precedents ? A court of lawdecides a case of first impression ; no statute governs, no precedent is appli-cable. It is precisely because a judge cannot find a previously announcedrule that he becomes a legislator to a limited extent. All these would showthat it is impossible to enunciate the rule of law which has as its basis thatno decision can be made unless there is a certain rule to govern the decision,(See "Discretionary Justice" by K. C. Davis).


Leaving aside these extravagant versions of rule of law, there is agenuine concept of rule of law and that concept implies equality beforethe law or equal subjection of all classes to the ordinary law. But, if ruleof law is to be a basic structure of the Constitution, one must find specificprovisions in the Constitution embodying the constituent elements of theconcept. I cannot conceive of rule of law as a twinkling star up above theConstitution. To be a basic structure, it must be a terrestrial concept hav-ing its habitate within the four corners of the Constitution. The provisionsof the Constitution were enacted with a view to ensure the rule of law.Even if I assume that rule of law is a basic structure, it seems to me thatthe meaning and the constituent elements of the concept must be gatheredfrom the enacting provisions of the Constitution. The equality aspect ofthe rule of law and of democratic republicanism is provided in Article 14.May be, the other articles referred to do the same duty.

Das, C. J. said that Article 14 combines the English doctrine of therule of law and the equal protection clause of the 14th Amendment tothe American Federal Constitution (Basheshar Nath v. Commissioner ofIncome Tax (1959), 1 S. C. R. 528, at pp. 550-551). In State of Bengal v.Anwar AH Sarkar (1952) S. C. R. 284 at p. 293 Patanjali Sastri, C. J. ob-served that the first part of the Article which has been adopted from theIrish constitution, is a declaration of equality of the civil rights of all per-sons within the territories of India and thus enshrines what American judgesregard as the "basic principle of republicanism" Ward v. Flood, 17 Am.Rep. 405 and that the second part which is a corollary of the first is basedon the last clause of the first section of the Fourteenth Amendment of theAmerican Constitution. So the concept of equality which is basic to ruleof law and that which is regarded as the most fundamental postulate ofrepublicanism are both embodied in Article 14. If, according to themajority in Bharati's case Article 14 does not pertain to basic structure ofthe Constitution, which is the other principle of equality incorporated inthe Constitution which can be a basic structure of the Constitution or anessential feature of democracy or rule of law ? However, it is unnecessaryto pursue this aspect of the question as I have already given reasons toshow clause (4) to be bad.

I think clause (4) is bad for the reasons which I have already summa-rized. Clauses (1) to (3) of Article 329-A are severable but I express noopinion on their validity as it is not necessary for deciding this case.

Then the question is, whether the Representation of the People (Am-endment) Act, 1974, and the Election Laws (Amendment) Act, 1975, arcliable to be challenged for the reason that they damage or destroy a basicstructure of the Constitution. Counsel for the respondent submitted that,if, by a constitutional amendment, the basic structure of the Constitutioncannot be destroyed or damaged, it would be illogical to assume that anordinary law passed under a power conferred by that instrument can doso and since these Acts damage the concept of free and fair election, theActs were bad.

I think the inhibition to destroy or damage the basic structure by anamendment of the Constitution flows from the limitation on the power ofamendment undsr Article 368 read into it by the majority in Bharati's casebecause of their assumption that there are certain fundamental features inthe Constitution which its makers intended to remain there is in perpetuity.But I do not find any such inhibition so far as the power of Parliament orState Legislatures to pass laws is concerned. Articles 245 and 246 givethe power and also provide the limitation upon the power of these organs

272 SWT. INDIRA NEHRU GAtifcHt V. SHRI RAJ NARAIN [VOR. LVfl

to pass laws. It is only the specific provisions enacted in the Gonstitutionwhich could operate as limitation upon that power. The preamble, thougha part of the Constitution, is neither a source of power nor a limitationupon that power. The preamble sets out the ideological aspirations of thepeople. The essential features of the great concepts set out in the preambleare delineated in the various provisions of the Constitution. It is thesespecific provisions in the body of the Constitution which determine thetype of democracy which the founders of that instrument established, thequality and nature of justice, political, social and economic which was their

desideratum, the content of liberty of thought and expression which theyentrenched in that document, the scope of equality of status and of oppor-tunity which they enshrined in it. These specific provisions enacted in theConstitution alone can determine the basic structure of the Constitutionas established. These specific provisions, either separately or in combina-tion determine the content of the great concepts set out in the preamble. Itis impossible to spin out any concrete concept of basic structure out of thegossamer concepts set out in the preamble. The specific provisions of theConstitution are the stuff from which the basic structure has to be woven.The argument of counsel for the respondent proceeded on the assumptionthat there are certain norms for free and fair election in an ideal demo-cracy and the law laid down by Parliament or State Legislatures must betested on those norms and, if found wanting, must be struck down. Thenorms of election set out by Parliament or State Legislatures tested in thelight of the provisions of the Constitution or necessary implications there-from constitute the law of the land. That law cannot be subject to anyother test, like the test of free and fair election in an ideal democracy.

I do not think that an ordinary law can be declared invalid for thereason that it goes against the vague concepts of democracy; justice, poli-tical, economic and social ; liberty of thought, belief and expression ; orequality of status and opportunity, or some invisible radiation from them.

" No political terms have been so subjected to contradictory defi-nitions as 'democracy' and 'democratic' since it has become fashionable andprofitable for every and any state to style itself in this way. The SovietUnion and Communist States of Eastern Europe, the Chinese People's Re-public, North Korea and North Vietnam all call themselves democracies.So does Nasser's Egypt; so does General Stoessner's Paraguay; so didSukarno's Indonesia. Yet, if anything is clear, it is that these States donot all meet the same definition of democracy". [See Finer; ComparativeGovernment (1970), pp. 62-63/].

Definitions are important, for, they are responsible in the last analysisfor our image of democracy. The question is not only what does the word'democracy' mean but also what is the thing. And, when we try to answerthis latter query, we discover that the thing does not correspond to the word.So, although 'democracy' has a precise literal meaning, that does not reallyhelp us to understand what an actual democracy is. In the real world, R.A. Dahl has pointed out that, democracies are 'polyarchies'. The termdemocracy has not only a descriptive or denotative function but also anormative and persuasive function. Therefore, the problem of definingdemocracy is twofold, requiring both a descriptive and prescriptive function.To avoid pitfalls, it is necessary to keep in mind two things—first, that afirm distinction should be made between the is and the ought of democracy,and, second, that the prescriptive and the descriptive definitions of demo-cracy must not be confused, because the democratic ideal does not define


the democratic reality and vice versa; the real democracy is not and can-not be the same as the ideal one. (See "Democratic Theory" by GiovanniSartori, Chapter I). One cannot test the validity of an ordinary law withreference to the essential elements of an ideal democracy. It can be testedonly with reference to the principles of democracy actually incorporatedin the Constitution. Nor can it be tested on the touchstone of justice. Themodern pilate asks: What is justice ? and stays not for an answer. ToHans Kelsen, justice is an irrational ideal, and regarded from the point ofrational cognition, he thinks there are only interests and hence conflict ofinterest. Their solution, according to him, can be brought about by anOrder that satisfies one interest at the expense of the other or seeks toachieve a compromise between opposing interests. [General Theory ofLaw and State (1946), p. 13]. Mr. Allen has said that the concept of socialjustice is vague and indefinite. (Aspects of Justice, p. 31). Liberty ofthought, expression, belief, faith and worship are not absolute concepts.They are emotive words. They mean different things to different people.Equality of status and of opportunity are concepts laden with emotionalovertones. In their absoluteness they are incapable of actual realisation.The enacting provisions in the body of the Constitution alone give concreteshape to these ideas and it is on the basis of these provisions that the vali-dity of ordinary law should be tested.

The democracy which our Constitution-makers established is based onthe representation of the people in the law-making organs. The methodby which this representation has to be effectuated has been provided in theConstitution. Part XV of the Constitution deals with the topic of elections.Article 326 provides that elections to the House of the People and to theLegislative Assemblies of States should be on the basis of adult suffrage.Articles 327 and 328 provide for making of laws with respect to all mattersrelating to, or in connection with, elections to either House of Parliamentor to the House or either House of the Legislature of a State including thepreparation of electoral rolls, the delimitation of constituencies and allother matters necessary for securing the due constitution of such House orHouses. The validity of any law relating to the delimitation of constitu-encies, or the allotment of seats to the constituencies, made or purportingto be made under Article 327 or Article 328 shall not be called in questionin any court. [See Article 329(a)].

This would indicate that the Constitution has entrusted the task offraming the law relating to election to Parliament, and, subject to the lawmade by Parliament, to the State Legislatures. An important branch ofthe law which sounds in the area of free and fair election, namely, delimi-tation of constituencies and allotment of seats to such constituencies is putbeyond the cognizance of court. When it is found that the task of writingthe legislation on the subject has been committed to Parliament and StateLegislatures by the Constitution, is it competent for a court to test its vali-dity on the basis of some vague norms of free and fair election ? I think not.As I said, like other laws made by Parliament or State Legislatures, thelaws made under Articles 327 and 328 are liable to be tested by Part IIIof the Constitution or any other provision of the Constitution ; but it isdifficult to see how these laws could be challenged on the ground that theydo not conform to some ideal notions of free and fair election to be evolvedby the court from out of airy nothing.

The doctrine of the 'spirit' of the Constitution is a slippery slope. Thecourts are not at liberty to declare an act void, because, in their opinion,it is opposed to the spirit of democracy or republicanism supposed to per-vade the Constitution but not expressed in words. When the fundamental


law has not limited, either in terms or by necessary implication, the generalpowers conferred upon the legislature, we cannot declare a limitation underthe notion of having discovered some ideal norm of free and fair election.

Cooley has observed that courts are not at liberty to declare statutesvoid because they appear to the minds of the judges to violate fundamentalprinciples of republican government, unless it shall be found that those prin-ciples are placed beyond legislative encroachment by the Constitution. Theprinciples of democratic republican government are not a set of inflexiblerules ; and unless they are specifically incorporated in the Constitution, nolaw can be declared bad merely because the Court thinks that it is opposedto some implication drawn from the concept. {See Constitutional Limita-tions, 8th Ed., Vol. I, pp. 349—352).

Counsel for the respondent relied upon the observations of Sikri, C. .F,at p. 216, Shelat and Grover, JJ., at p. 292, Hegde and Mtikerjea, J.T- atp. 355 and Reddy, J., at p. 556 in their judgments in Bharati's case in sup-port of his contention that when these Acts were put in the Ninth Scheduleby the constitutional amendment, their provisions became vulnerable voattack if they or any one of them damaged or destroyed the basic featuresof democracy or-republicanism.

Sikri, C. J-, has said that the Constitution 29th Amendment Act. 1v71,is ineffective to protect the impugned Acts there if they abrogate or takeaway fundamental rights. This would not show that the learned ChiefJustice countenanced any challenge to an Act on the ground that the basicstructure of the Constitution has been damaged or destroyed by its provi-sions not constituted by the fundamental rights abrogated or taken away.In other words, if by taking away or abridging the fundamental rights, thebasic structure of the Constitution is damaged or destroyed, then, accord-ing to the learned Chief Justice, the legislation would be vulnerable onthat score, even though it is put in the Ninth Schedule by a constitutionalamendment. But it would not follow that an Act so put can be challengedfor a reason not resulting from the taking away or abrogation of the funda-mental right. To put it differently, even though an Act is put in the NinthSchedule by a constitutional amendment, its provisions would be open toattack on the ground that they destroy or damage the basic structure if thefundamental right or rights taken away or abrogated pertains or pertainto basic structure. But the Act cannot be attacked, if I may say, so, fora collateral reason, namely, that the provisions of the Act have destroyedor damaged some other basic structure, say, for instance, democracy orseparation of powers.

Shelat and Grover, JJ., have said in their judgment that the 29th Am-endment is valid, but the question whether the Acts included in the NinthSchedule by that Amendment or any provision of those Acts abrogates anyof the basic elements of the constitutional structure or denudes them oftheir identity will have to be examined when the validity of those Actscomes up for consideration. Similar observations have been mad? byHegde and Mukerjea, JJ., and by Reddy, J., Khamia, J., only said that the29th Amendment was valid.

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•T3.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 2 7 5

There is no support from the majority in Bharatis's case (supra) forthe proposition advanced by counsel that an ordinary law, if it damages ordestroys basic sti T^LT; W I M ^e held bad or for the proposition that aconstitutional r u n 3 p . , * ! 1 ' -1 Act in the Ninth Schedule wouldmake the ptovi ot 1 e * 1 / I r . r b ' . for th5 reason that they damageor destroy a l a r . * 1 d ot by ills fundamental rights lake aaway or abridged u • > r b k <- tructure. And, in principle, I seeno reason i">i ^cfpa.'^, > „ ect^c of the proposition.

• The Constitution-makers eschewed to incorporate the 'due process'clause in that instrument apprehending that the vague contours of that con-cept will make the court a third chamber. The concept of a basic structureas brooding omnipresence in the sky apart from the specific provisions ofthe Constitution, constituting it is too vague and indefinite to provide ayard-stick to determine the validity of an ordinary law.

So if it be assumed that the-je election laws amendment Acts, even afterthey were put in the Ninth Schedule by constitutional amendment remainedopen to attack for contravention, if any, of the fundamental rights, theseActs would not be open to attack on the ground that their provisions destroy-ed or damaged an essential feature of democracy, namely, free and lairelection. The Acts remain part of the ordinary law of the land. They didnot attain the status of constitutional law merely because they were put inthe Ninth Schedule. The utmost that can be said is, as I indicated, thateven after putting them in the Ninth Schedule, their provisions would be-open to challenge on the ground that they took away or abrogated all orany of the fundamental rights and therefore, damaged or destroyed a basicstructure, if, the fundamental rights or right taken away or abrogated con-stitute or constitutes a basic structure.

Counsel for the respondent then contended that retrospective operationhas been given to the provisions of these Acts and that that would destroyor damage an essential feature of democracy viz., free and fair elections.The argument was that if one set of laws existed when an election was heldand the result announced, you cannot thereafter substitute another set oflaws and say that those laws must be deemed to have been in operationat the time when the election was held and the result announced, as thatwould lead to inequality, injustice and unfairness.

Restrospective operation of law in the field of election has been unheldby this Court [see Kant a Kathurai v. Manak Chand (supra) (32)]. Retros-pective operation of any law would cause hardship to some persons or other.This is inevitable ; but that is no reason to deny to the legislature the powerto enact retrospective lav/. In the case of a law which has retrospectiveeffect, the theory is that the law was actually in operation in the past andif the.provisions of the Acts are general in their operation, there can be nochallenge to them on the ground of discrimination or unfairness merely be-cause of their retrospective effect. In other words, if an Act cannot bechallenged on the ground that its provisions are discriminatory or unreason-jib'e if it is pi ~>&n \'"7z ; i operation, those provisions cannot be attacked on"IT e : ^vA >*t ' r e the provisions were ?.iven retrospective effect,'1 *>>>* ....I" 1 ^ 'rcunxtances. I see no such special circumstancesh e 3

I ihcrefore Isold Ibal these Acts are not liable to be challenged ors anyof the grounds argued by counsel.

2 7 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVI1

Counsel for the respondent submitted that the session of Parliamentin which the Election Laws Amendment Act, 1975 and the 39th Amend-ment to the Constitution were passed was not properly convened and there-fore the amendments were invalid. *.,

The argument was that a number of members of the two Houses ofParliament were illegally detained by executive orders before the summon-ing of the two Houses and that was made possible by the President—theauthority to summon the two Houses—making an order under Article 359of the Constitution on 27th June, 1975, which precluded these membersfrom moving the court and obtaining release from illegal detention andattending the session. In effect, the contention of counsel was that theauthority to summon parliament effectually prevented by its order madeunder Article 359 those members who were illegally detained from attend-ing the session and as the composition of the session was unconstitutional,any measure passed in the session would be bad. Reliance was placed bycounsel upon the decision in A. Nambiar v. Chief Secretary [(1966) 2 S. C. R.4O6.[] in support of this proposition.

The question which fell for consideration in that case was whether,when a member of parliament was convicted for a criminal offence and wasundergoing a sentence in pursuance thereof, he has an unconditional rightto attend a session of parliament. This Court held that he had no privi-lege which obliged the court to release him from custody in order to enablehim to attend the session. This decision has no relevance to the point incontroversy here.

• " In England, a member of parliament who is convicted of a criminaloffence and s undergoing sentence in pursuance to his conviction has noright or privilege to be released from custody for attending parliament. Thevery same principle will apply in the case of a detention under an emergencyregulation. [See May's Parliamentary Practice, 18th ed., p. 103.]

In England, it was taken as settled that parliamentary roll is conclusiveof the question that a bill has been passed by both houses of parliamentand has received royal assent and no court can look behind the roll as suchan inquiry would be an interference with the privilege of parliament. LordCampbell said in Edinburgh and Dalkith Ry. v. Wauchope [(1842) 8 CLand F. 710 at p. 724.]

"I think it right to say a word or two upon the point that has beenraised with regard to an Act of Parliament being held inoperativeby a court of justice because the forms prescribed by the twoHouses to be observed in the passing of a Bill have not beenexactly followed I cannot but express my surprise that sucha notion should have prevailed. There is no foundation for it.All that a court of justice can do is to look to the ParliamentaryRoll: If from that it should appear that a Bill has passed bothHouses and received the Royal Assent, no court of justice caninquire into the mode in which it was introduced in Parliament,nor into what was done previous to its introduction, or what pass-ed in Parliament during its progress in its various stages throughboth Houses."

It has since been said that Parliamentary Roll is not conclusive, thatwhen the jurisdiction of a court is invoked, it has power to determine whe-ther everything necessary has been done for the production of a, valid statute,that rule of law requires that the court should determine legal questions


raised before it and if its jurisdiction is properly invoked, it has to answerthe question whether the document is a statute duly enacted by a parliament.The view as propounded has been summarized as follows:

"(1) Sovereignty is a legal concept: the rules which identify the sove-reign and prescribe its composition and functions are logicallyprior to it.

<2) There is a distinction between rules which govern, on the one hand.(a) the composition, and (b) the procedure, and on the other hand,(<:) the area of power of a sovereign legislature.

(3) The courts have jurisdiction to question the validity of an allegedAct of Parliament on grounds 2 (a) and 2(6), but not on ground2(c)". [See R. F. V. Heuston; Essays in Constitutional Law,Second edition, pp. 6-7.]

The reasons for the view are these: When the purported sovereign is any-one but a single actual person, the designation of him must include tiie.statement' of rules for the ascertainment of his will, and these rules, sincetheir observance is a condition of the validity of his legislation, are rulesof law logically prior to him. [See Latham: The Law and the Common-wealth" (O. U. P. 1949), p. 523.] The extraction of a precise expressionof will form a multiplicity of human beings is, despite all the realists say,an artificial process and one which cannot be accomplished without arbitraryrules. It is therefore, an in complete statement to say that in a state suchand such an assembly of human beings is sovereign. It can only be sove-reign when acting in a certain way prescribed by law. At least some rudi-mentary'rmanner and form is demanded of it: the simultaneous incoherentcry of a rabble, small or large, cannot be law, for it is unintelligible. [SeeLatham: "What is an Act of Parliament" (1939) King's Counsel, p. 152.]

Sir, Frederick Pollock has said that supreme legal power is in onesense limited by the rules which prescribe how it shall be exercised. Evenif no constitutional rule places a limit or boundry to what can be done bysovereign legal authority, the organs which are to exercise it must be deli-mited and defined by rules. [See Geoffrey-Marshall: Constitutional Theory

...pp. 40-41.]

So, the questions to be asked are: how is parliament composed ? Hew• does parliament express its will ?

The rules which identify the sovereign are as important as the institu-tion so identified. If this is so, it is open to the court to see whether a par-liament has been properly summoned in order to decide the question whe-ther a measure passed by it answers the description of a statute or an Actand that parliamentary roll, if such a thing exists, is not conclusive.

As to Parliamentary Roll, Heuston has said:

"The 'Parliamentary Roll", whatever exactly it may have been, dis-appeared in England a century ago, though even pood authorssometimes write as if it still exists. Since 1849 there'has been no'Roll', simply two prints of the Bill on durable vellum by HerMajesty's Stationery Office, which are signed by the Clerk of theParliaments and regarded as the final official copies. One is pre-served in the Public Record Office and one in the library of theHouse of Lords", [Essays in Constitutional law p. 18 (2nd ed.).]

19—345 Elec. Com./ND/o!

2 7 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LV1I

Article 122(1) provides that the validity of any proceedings in Parlia-ment shall not be called in question on the ground of any alleged irregu-larity of procedure. So, even if there j s any irregularity in the procedurein the passing of the statute it is not open to a court to question its validity.But this is distinct from the question whether the two Houses have beenproperly summoned and the composition of the Session was proper.

The Solicitor General said that if a member is excluded from partici-pating in the proceedings of a House, that is a matter concerning the pri-vilege of that House as the grievance is one of exclusion from the proceed-ings within the walls of the House. And, in regard to the right to beexercised within the walls of the House, the House itself is the judge. Hereferred to May's Parliamentary Practice (18th ed., pp. 82—83) and aisoto Bradlaugh v. Gossett [12 Q. B. D. 271, 285-286 in this connection. Hsfurther said that if an outside agency illegally prevents a member from parti-cipating in the proceedings of the House, the House has power to securehis presense in the House and cited May's Parliamentary Practice (18th ed.,pp. 92—35) to support the proposition.

These passages throw no light on the question in issue here. Eversince the decision of Holt, C. J. in Ashby v. White [(1703) 14 St. Tr. 695.]it has been settled that privilege is part of the common law and cannot,affect rights to be exercised outside or independently of the House. Regu-larity of internal proceedings is one thing ; the constitutional rights of thesubject are another ; and it is the latter which are in issue in a case wherethe question is whether the document is a statute. [(See Heuston: Essaysin Constitutional Law, 2nd ed., p. 22).]

Article 85(1) provides that the President shall from time to time sum-mon each House of Parliament to meet at such time and place as he thinksfit, but six months shall not intervene between its last sitting in one sessionand the date appointed for its first sitting in the next session.

The detention of these members of parliament was by statutory autho-rities in the purported exercise of their statutory power. It would bestrange if a statutory authority, by an order which turns out to be illegal,could prevent the Houses of Parliament from meeting as enjoined byArticle 85. If a statutory authority passes an illegal Order of detention andthus prevents a member of parliament from attending the House, how canthe proceedings of parliament become illegal for that reason ? It is theprivilege of parliament to secure the attendance of persons illegally detained.But what would happen if the privilege is not exercised by parliament ? Ido not think that the proceedings of parliament would become illegal forthat reason.

The suspension of the remedy for the enforcement of fundamentalrights by the order of the President under Article 359 is dependent upona valid proclamation of emergency under Article 352. If a situation arose-which authorized the President to issue a proclamation under Article 352,he could also suspend, under Article 359, the remedy to move the court toenforce the fundamental rights. These are the constitutional functions ofthe President and unless it is established that the proclamation made bythe President under Article 352 or the suspension under Article 359 of theremedy for enforcement of fundamental rights is unconstitutional, it is im-possible to hold that the President has, in any way, illegally prevented therelease of these members from the supposed illegal detention so as to makea session of parliament unconstitutional, in consequence of the inability ofthose members to attend the session. In other words, the President, in per-

E.L.R,] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 279

forming his constitutional function under these articles has not authorizedthe illegal detention of any person let alone any member of parliament orunconstitutionally prevented the release from custody of any member. Hehas only discharged his constitutional functions. If this be so, it is difficultto hold that the session in which the amendments were passed was illegallyconvened. The challenge to the validity of the amendments on this scoremust be overruled.

Counsel for the respondent submitted that it is immaterial when acandidate commuted a corrupt practice—whether it was before or after hebecame a candidate—and that an election would be set aside even if a per-son committed the corrupt practice before he became a candidate. Section79(6) of the Representation of the People Act, 1951, denned the word "can-didate" as follows:

" 'candidate' means a person who has been or claims to have beenduly nominated as a candidate at any election, and any such personshall be deemed to have been a candidate as from the time when,with the election in prospect, he began to hold himself out as aprospective candidate".

Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the pre-sent definition in s. 19(b) which reads:

" 'candidate' means a person who has been or claims to have beenduly nominated as a candidate at an election."

In support of the proposition that an election can be set aside even ifa person has committed corrupt practice of bribery before he became acandidate, counsel cited Halsbury's Laws of England, 3rd ed.. Volume 14,pages 222 (paragraph 386) and 218 (paragraph 380).

These paragraphs state that in order to constitute the offence of bri-bery, it does not matter how long before an election a bribe is given, pro-vided that the bribe is operative at the time of the election, and that, timeis material only when considering the question of evidence.

Counsel further said that under s. 100 of the Representation of 'hePeople Act, 1951, an election is liable to be set aside if it is found underclause (b) of sub-section (1) of that section that a returned candidate hascommitted corrupt practice ; that ex hypothesi, a returned candidate can-not commit a corrupt practice, and therefore, it is not the description of aperson as a returned candidate that is material. He argued that if in s.100(l)(fe) the word 'returned candidate' is used not with the idea of indicat-ing that a person should have committed corrupt practice after he becamea returned candidate, there is no reason to think that the word 'candidate*in s. 123(7) has been used to show that the corrupt practice therein men-tioned should have been committed after a person has become a 'candidate'in order that the election of the candidate might be set aside.

There can be no doubt that s. 100(l)(Z>), when it speaks of commissionof corrupt practice by a returned candidate, it can only mean commissionof corrupt practice by a candidate before he became a returned candidateAny other reading of the sub-section would be absurd. But there is no suchcompulsion to read the word 'candidate' in s. 123(7) in the same manner.It is the context that gives colour to a word. A word is not crystal clear.Section 79 of the Act indicates that the definitions therein have to be readsubject to the context.


The legislature must fix some point of time before which a personcannot be a 'candidate' in an election, and, a wide latitude must be given

• to the legislature in fixing that point. In Union of India and another, etc.versus Messrs. Parameswaran Match Works, etc (62), (Civil Appeals nos.262-273, 587-591 arid 1351-1402 of 1971 and 1883-1921 of 1972, decided on4-11-1974. 240 U. S. 30. at 32. this Court observed:

"The choice of a date as a basis for classification cannot always bedubbed as arbitrary even if no particular reason is forthcomingfor the choice unless it is shown to be capricious or whimsical inthe circumstance;. When it is seen that a line or point there mustbe, and there is no mathematical or logical way of fixing it pre-cisely, the decision of the legislature or its delegate must beaccepted unless we can say that it is very wide of the reasonablemark. See Louisville Gas Co. v. Alabama Power Co. (240 U. S.30, at 32.) per Justice Holmes."

The learned Chief Justice has, in \\u judgment, referred to the rele-vant English statutes and the decisions of the English Courts bearing onthis point and has pointed out the difference between the English Law andthe Indian Law. I do not consider it necessary to cover the same ground.I agree with his conclusion on the point.

I would therefore hold that even if it be assumed that the finding ofthe High Court that the appellant obtained or procured the assistance ofShri Yashpal Kapur during the period from January 7 to 24, 1971, is cor-rect, the appellant shall not be deemed to have committed corrupt practiceunder s. 123(7) of the Representation of the People Act, 1951, as she be-came a candidate only on February 1, 1971. The learned Chief Justice hasalso dealt with the contention urged by counsel for respondent that clause8(6) of the_ Election Laws Amendment Act, 1975 suffers from the vice ofexcessive delegation and is arbitrary. I agree with his reasoning for re-pelling the same.

There can be no dispute that if the Election Laws Amendment Act,1975, is valid, the appeal has to be allowed. I would, therefore, set asidethe findings of the High Court against the appellant and allow the appealwithout any order as to costs. In the cross appeal, the only question raisedwas about the correctness of the finding of the High Court that the appel-lant has not exceeded the prescribed limit of election expense. For thereasons given by Khanna, J. in his judgment, I hold that the finding of theHigh Court on this issue was correct. In this view, I have no occasion to-reach the other questions argued. I would dismiss the cross appeal withoutany order as to costs.

BEG, J.—There are two Election, Appeals Nos. 887 and 909 of1975, before us under Section 116A of the Representation of the PeopleAct of 1951 (hereinafter referred to as 'the Act'). They are directedagainst decisions on different issues contained in the same judgment ofa learned Judge of the Allahabad High Court allowing an election peti-tion filed by Shri Raj Narain (hereinafter referred to as the Election-Petitioner'), a defeated candidate at the election held in February, 1971,for the membership of the Lok Sabha or the House of the People,against Shrimati Indira Nehru Gandhi, the Prime Minister of India (here-imfter referred to as 'the Original Respondent'). The election-petitioneris the respondent in Appal no. 887 of 1975 filed by the original respon-dent. He is the appellant in Appeal -no. 909 of 1975 where the originalrespondent is the contesting respondent.


Before the election case, instituted on April 24, 1971, could bedecided by the Trial Court, an explanation was added to Section 77(1)of Ihe Act. It had some bearing on questions relating to the expensesincurred on the original respondent's election, sought to be raised by theelection-petitioner, but, on findings of fact recorded by the Triai Court,it became immaterial for the merits of the case and would continue tobe that so long as the election-petitioner is unable to dislodge the TrialCourt's findings on election expenses. Other amendments were made bythe Election Laws (Amendment) Act no. 40 of 1975, (hereinafter referredto as the 'Act of 1975'), notified on August 6, 1975, after the decision ofthe case by the learned Judge of the Allahabad High Court on June, 12,1975 and after the filng of the appeals before us. These amendmentsdeal directly with several questions decided by the Allahabad High Courtwhich were pending consideration before this Court. Finally, came theConstitution (Thirty-ninth) Amendment Act of 1975, (hereinafter referredto as the '39th Amendment'), gazetted on August 10, 1975, just beforethe commencement of the hearing of the appeals by this Court.

It was submitted by the learned Counsel for the original respondent,in his opening address, thai Section 4 of the 39th Amendment, addingclause (4) to Article 329A of Constitution, meant that Parliament itselfacting in its constituent capacity, had taken the case in hand and had,after applying its own standards, decided it in favour of the originalrespondent so that the jurisdiction of this Court to go info the merits ofthe case was ousted by clause (4), read with clauses (5) and (6), soughtto be added to Article 329-A of the Constitution. It was submitted byhim that each one of the amendments of the Act was aimed at removinggenuine uncertainties or doubts about what the law was so that it maybe brought into the line with what it had been previously understoodto be as declared by this Court, or, in any case, with what Parliament,correctly exercising its unquestionable law making powers, thought, thatit should be.

The constantly recurring and vehemently pressed theme of theargument of the learned Counsel for the election-petitioner was that the

. context and the contents of the Acts of 1974 and E975, and, after that,of Section. 4 of the 39th Amendment, clearly indicated thai the whole-object of the Acts of 1.974 and 1975 and of the Constitutional amendmentwas an oblique one : to deprive the election-petitioner of the remedieshe had under the law against an election vitiated by corrupt practices,and of the benefits of a decision of the High Court in his favour bytaking away its grounds and then the jurisdiction of Courts, whichexisted at the time of the 39th Amendment, to deal with the case sothat this case may not, in any event, terminate in favour of the election-petitioner. It was repeatedly suggested by the learned Counsel for theelection-petitioner, throughout his arguments, that the law making powershad been really abused, by a majority in Parliament for tJic purposes ofserving majority party and personal ends which were constitutionallyunauthorised. It was even alleged that the President of India had alsobecome a party to the misuse of Constitutional powers by passing anordinance depriving Courts of jurisdiction to entertain Habeas Corpuspetitions so that members of Parliament belonging to opposition parties,•detained under preventive detention laws, may not secure release andoppose proposals which became embodied in the 1975 Act and the 30thAmendment. It is when the country is faced with issues of this naturethat the constitutionally vital role of the judicature, as a co-ordinate and


independent organ of a democratic system of government, comes intoprominence and has to be performed without fear or favour, affection orillwill, as the custodian of constitutionality.

In the circumstances indicated above, it seemed to me to be abso-lutely essential for us to call upon the parties defending or assailing the39th Amendment and the Acts of 1974 and 1975, to take us, inter alia,into the merits of the cases of the two sides and the findings given bythe trying Judge so as to enable us to see how far these findings werejustifiable under the law as it stood even before the amendments'"by theActs of 1974 and 1975, how they were effected by these amendments,and how they were related to the validity of Section 4 of the 39th Amend-ment. Speaking for myself, I clearly indicated to learned Counsel forthe parties that I regard the nature and merits of the case decided tobe of crucial importance not only in considering the validity of the 39thAmendment and of the Acts of 1974 and 1975, but also in the widerinterests of justice which are bound to be served by the vindication ofthe case of the party which should, on merits, win. Elementary conside-rations of justice required that the party with a better case should not bedeprived of an opportunity of justifying its position, on facts and lawtouching the merits of the case, in the highest Courf of the land, particu-larly when the original respondent, who happens to be the Prime Ministerof this country, was accused of corrupt practices to secure her electionand then of abuse of constitutional power and position to shield them.The high office of the original respondent, far from disabling this Courtfrom investigating such allegations, ought to provide a good ground forthis Court to go into the merits of the case if we are not really deprivedof our jurisdiction to do that by Section 4 of the 39th Amendment.This follows from the Rule of law, as I understand it, embodied in ourConstitution. National interests cannot, or, atleast, should not, I believesuffer if justice and right, as determined by the highest Court in thecountry, prevail.

Citizens of our country take considerable pride in being able tochallenge before superior Courts even an exercise of constituent power,resting on the combind strength and authority of Parliament and theState legislatures. This Court, when properly called upon by the humb-lest citizen, in a proceeding before it, to test the Constitutional vadiiityof either an ordinary statute or of a Constitutional amendment, has todo so by applying the criteria of basic constitutional purpose and consti-tutionally prescribed procedure. The assumption underlying the theory ofjudicial review of all law making, including fundamental law making isthat Courts, acting as interpreters of what has been described by somepolitical philosophers (see Bosunouet's "Philosophical Theory of the State"Chap. V, p. 96—115) as the "Real Will" of the people, embodied intheir constitution and assumed to be more lasting and just and rationaland less liable to err than their "General Will", reflected by the opinionsof the majorities in Parliament and the State Legislatures for the timebeing, can discover for the people the not always easily perceived pur-poses of their Constitution. The Courts thus act as agents and mouthpieces of the "Real Will" of the People themselves. Although, judges,in discharging their onerous constitutional duties, cannot afford" to ignorethe limitations of the judicial technique and their own possibly greaterliability to err than legislators could on socio-economic issues and mattersof either social philosophy, or practical policy, or political opinion only,yet, they cannot, without violating their oaths of office, fail to elucidate

E.L.R ] SMT. INDIRA N L TJ GANDHI V. SHRI RAJ NARAIN 283

and uphold a basic constiti onai principle or norm unless compelled by(he law of the Constitution o abstain from doing so. One of thesebasic principles seems to rr to be that, just as Courts are not constitu-tionally competent to legisla , under the guise of interpretation, so alsoneither our Parliament nor any State Legislature, in the purported exercissof any kind of lawmaking power, perform an essentially judicial func-tion by virtually withdrawing a particular case, pending in any Court, andtaking upon itself the duty to decide it by an application of law or itsown standards to the facts of that case. This power must atleast befirst constitutionally taken away from the Court concerned and vestedin another authority before it can be lawfully exercised by that otherauthority. It is not a necessary or even a natural incident of a "Con-stituent power". As Hans Kelsen points out, in his "General Theory ofLaw and the State", (See p. 143), while creation and annulment of allgeneral norms, whether basic or not so basic, is essentially a legislativefunction, their interpretation and application to findings reached, after acorrect ascertainment of facts involved in an individual case, by employ-ing the judicial technique, is really a judicial function. Neither of thethree constitutionally separate organs of State can, according to the basicscheme of our Constitution today, leap outside the boundaries of its ownconstitutionally assigned sphere of orbit of authority into that of the other.This is the logical and natural meaning of the principle of supremacyof the Constitution.

Issues raised before us relating to the validity of the 39th Amend-ment and the Acts of 1974 and 1975 were : What are the Constitutionalpurposes and ambit of the "Constituent power" found in Article 368 of ourConstitution ? Where they, in any way, exceeded by the constituentauthorities in making the 39th Amendment in an unauthorised manner,or, for objects which, however, laudable, were outside the scope of Article368 ? Was there any procedural irregularity in the composition o£Parliament which could enable this Court to hold that there was a basicdefect in the enactment of either the 1975 Act or of the 39th Amend-ment? Whether provisions of the Acts of 11974 and 1975 are immunefrom attack even on the ground that they resulted in a departure fromthe "basic structure" of our Constitution as explained by this Court inHis Holiness Kesavananda Bharali Sripadaqalavant v. State o; Kerala,[(1973) 1 Sppl. S. C. R. p. 1] by having been included in the 9th Scheduleof our Constitution, which does protect them from a challenge on theground of any contravention of Part III guaranteeing fundamental rightsto citizens and other persons, or, in other words, were the limits of thebasic structure only operative against Constitutional Amendments or applyto ordinary statutes as well ? Are any of the provisions of the Acts of1974 and 1975 void for departures from or damage to any part of the"basic structure" of our Constitution or for any other excess or misuseof law making powers ?

We do not, when such a case comes up before us, concern ourselveswuh the validity of provisions other than those which affect the casebefore us. Nor do we consider the objects of any provision, in vacuo,divorced from the facts of the case to be decided. Therefore, partieshad to and did address us on the broad features of the findings given byI he learned Trial Judge and the nature of the evidence given to supportthem so that we may be able to decide, inter alia, whether any "valida-tion" of the original respondent's election, which was the evident purposecf clause (4) of Article 329, sought to be added by Section 4 of the 39th


Amendment, was at all necessary. If that election was not really voidand had been wrongly held by the Trial Court to be vitiated, it did notneed to be validated at all. In that event, a purported validation wouldbe an exercise in futility before this Court had decided these appeals.Could it not be said that the intended validation was premature inasmuchas it proceeded on a basically erroneous premise that the original respon-dent's election was invalid when the question of its validity was sub-judice in this Court? How could such a premise be assumed to bacorrect before this Court had gone into merits and decided the appealspending before it ? Such an inquiry is not irrelevant if the very natureand purpose of the exercise of a power are put in issue by both sides.

If the existence of the judgment of the Allahabad High Court createdthe impression that it must be assumed to be correct even before this Courthad pronounced upon the correctness of the judgement, the stay ordergiven by this Court should have removed it. The legal effect of that stayorder was that the Trial Courts order to use the language of Section 116A(4) of the Act "shall be deemed never to have taken effect". It did notmatter if the stay order, out of deference for existing precedents, had beenframed in the form of a "conditioned" stay, that is to say, a stay in lawand effect with certain conditions annexed. It was not a "conditional" stay,Indeed, having regard to the nature of the order the operation of whichwas to be stayed, there could be no "conditional" stay here. As to thelegal effect of such a stay order, there is no doubt in my mind that,considering the ciear words of section 116A(4) of the Act, it deprived theorder of the High Court of any operative force whatsoever during thependency of these appeals. There could be really no binding precedent indiscretionary matters depending on the facts and circumstances of eachcase. The operation of the judgment of the Trial Court and the consequen-tial orders are stayed only on "sufficient cause" shown on the facts of thatcase. In the case before us, the sufficient cause seems to me to be apparentfrom a bare perusal of the judgment of the Trial Court. As I have pointedout below, the judgment under appeal contains glaringly erroneous conclu-sions, reached by ignoring what has been repeatedly laid down in electioncases by this Court, even if one were to assume for the sake of argumentthat all the findings of fact recorded by the Trial Court, including somevery questionable ones on which its conclusions rest, were correct.

In a case where the bona fides of legislation and even of a Constitu-tional amendments, is questioned on the ground of a suggested i'rigiitlulnessin the facts of the case which Parliament and the ratifying State Legislaturesare to be supposed, if we are to accept the suggestion, to have been actingin concert to prevent this Court from examining on merits, it was. 1 thinkthe duty of Counsel making any such suggestion to invite our attention toany fact not fully disclosed or discussed in the judgment under appealatieast when he was asked, as I repeatedly asked him in the course ofhis arguments extending over a period of about fifteen days out of atotal period of hearing of the case for thirty-two days, how the Trial•Courts, conclusions on the two matters, forming the subject matter ofappeal no. 887 of 1975 of the original respondent, could possibly bejustified. However, I have also satisfied myself, by going through thewhole evidence en record on these two matters wh'ch I shall presentlydeal, with that learned Counsel for the election-petitioner could notpossibly usefully add anything to the replies he actually gave on the ques-tions put to him on these matters and to the discussion of the whole evidenceon these questions by the Trial Court. I have taken pains to clarify

E.L.R-] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 285

this position as the learned Counsel for the election petitioner, at theend of arguments of both sides, extending over thirty-two days of actual hear-ing, stated that he had argued on the assumption that we will be con-cerned only with the validity of the 39th Amendment and the validityand correct interpretation of the Acts of 1974 and 1975. I think thatit was made clear to him that we will have to enter into the merits ifthat was necessary, as I think, it is, for judging whether amend-ments in law were either necessary or justified. LearnedCounsel for the election petitioner was not prevented from dealing withany quest-on, whether of fact or law, which he may have wanted toraise. Learned Counsel for both sides had fully argued at least theelection petitioners 'appeal no. 909 of 1975 on facts and law. They hadtaken us sufficiently into facts and findings involved in the originalrespondents appeal no. 887 of 1975 to justify our ideal ing with all ques-tions necessary to decide this appeal on merits also. Indeed, it is notnecessary for us to go beyond findings of fact recorded by the learnedJudge, as distinct from conclusions based npon them which are questionsof law, ito demonstrate the very palpable errors committed by the learnedJudge on the two questions which are the subject-matter of appeal no,887 of 1975.

Shrimati Indira Nehru Gandhi was1 elected to the House cf the Peoplefrom the Rae Bareli Constituency in Uttar Pradesh by an overwhelmingmajority of 1,11,800 votes against Sri Raj Narain. As is not unusualthe defeated candidate filed an election petition under the Act making allkinds of allegations, including some quite extravagant ones, which formedthe subject-matter of the first set of eleven issues framed on j 9th August,1971. Thereafter, three additional issues were framed on 27th April,1973 when the quest.'on whether an amendment of the petition, sought.after the period of limitation for filing a petition to challenge the elec-tion had expired, should be permitted, had been finally decided by thisCourt in favour cf Shri Raj Narain.

The issues framed give an idea of the cases set up on behalf of thetwo sides. They were ;

Issues

1. Whether respondent no. 1 obtained and procured the assistanceof Yashpal kapur in furtherence of the prospects of her electionwhile he was still a Gazetted Officer in the service of Govern-ment of India. If so- from what date ?

2. Whether at the instance of respondent no. 1 members of thearmed forces of the Union arranged Air Force planes and heli-copters for her, flown by members of the Armed Forces to enableher to address election meetings' on 1st February, 1971 and 25thFebruary, 1971, and if so, whether this constituted a corruptpractice "under section 123(7) of the 'Representation of the People!Act ?

3. Whether at the instance of respondent no. 1 and her electionagent Yashpal Kapur, the District Magistrate of Rae Bareli, theSuperintendent of Police of Rae Bareli and the Home Secretaryof U. P. Government arranged for rostrums, loudspeakers andbarricade's to be set up and for members of the Police Force


to be posted in connection with her election tour on 1st February,1971 and 25th February, 1971 ; and, if so, whether this amountsto a corrupt practice under Section 123(7) of the Representationof the People Act ?

4. Whether quilts- blankets:, dhoties and liquor were distributed byagertts and workers of respondent no. 1 with the consent of herelection agent Yashpal Kapur, at the places and on the datesmentioned in Schedule A of the petition in order to induce elec-tions to vote for her ?

5. Whether the particulars given in paragraph 10 and Schedule 'As

of the petition are too vague and general to afford a basis forallegations of bribery under section 123(1) of the Representationof the People Act ?

6. Whether by using the symbol cow and calf, which had been allottedto her party by the Election Commission in her election com-paign the respondent no. 1 was guilty of making an appeal toa religious symbol and committed a corrupt practice as definedin section 123(3) of the Representation of the People Act ?

7. Whether on the dates fixed for the poll voters were conveyed tothe polling stations free of charge on vehicles hired and pro-cured for the purpose by respond no. l's election agent YashpaiKapur, or other persons with his consent as detailed in Schedule'B' to the petition?

8. Whether the particulars given in paragraph 12 and Schedule Bof the petition are too vague and general to form a basis forallegations regarding a corrupt practice under section 123(5) ofthe Representation of the People Act ?

9. Whether respondent no. 1 and her election agent Yashpal Kapurincurred or authorised expenditure in excess of the amount pre-scribed by section 77 of the Representation of the People Act,read with rule 90, as detailed in para 13 of the petition ?

10. Whether the petition had made a security deposit in accordancewith the rules of the High Court as required by section 117 ofthe Representation of the People Act ?

11. To what relief, if any, is the petitioner entitled?

Additional issues

1. Whether respondent no. 1, obtained and procured the assistanceof Yashpal Kapur in furtherence of the prospects of her electionwhile lie was still a Gazetted Officer in the service of theGovernment of India. If so, from what date ?

2., Whether respondent no. 1 held herself out as a candidate from' any date prior to 1st February, 1971 and if so, from what date?

Whether Yashpa! Kapur continued to be in the service of Govern-ment of India, from and after 14th January, 1971 or till whichdate ?

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN 2 8 7

The High Court trying the case had, in the course of a lengthy judg-inent, dejected the election-petitioner's case on issues nos. 2, 4, 6, 7, and9 of the first set of issues, after minutely and meticulously scrutinizingevery material allegation of the election petitioner and the evidence givenin support of it on each of these issues. Out of these, the election-petitioner, in his, cross appeal no. 909 of 1975, has questioned the findingsof the High Court only on issues nos. 2, 4, 6, 7 and 9 set out above.jissues nos. 5 and 8 and 10, decided in favour of the election petitioner,were technical and are immaterial now. It will be noticed that theadditional issue no. 1, due to some error or oversight, is an exact and•unnecessary repetition of the initial issue no. 1. Additional issues numbered2 and 3 are connected with and subsidiaries of the intially framed issuesnumbered 1 and 3.

The learned Trial Judge had accepted the election petitioner's caseon the material issues numbered 1 and 3 of the initially framed issues,and on the overlapping and subsidiary additional issues 1, 2 and 3. Hewas of opinion that Shri Yashpal Kapur, a Central Government servantand a gazetted officer of the rank of an Under Secretary,deputed to serve in the Prime Ministers' Secretariat as an Officeron Special Duty, had held his post until 25th January, 1971, when hisresignation, tendered on 13th January, 1971, was accepted by the Presi-dent of India with effect from 14th January, 1971, by means of a notifi-cation published on 6th February, 1971. Consequently, the learnedjudge set aside the election of the original respondent after holding thatshe was guilty of a "corrupt practice" as defined by section 123 (7) ofthe Act, on each of two grounds; first, that she must be deemed to haveobtained the help of Shri Yashpal Kapur, in the furtherance of her elec-tion, before he had ceased to be a gazetted officer in Government service,and after the original respondent, had first held herself oat on 29thDecember, 1970, as a candidate at the forthcoming election from thsRae Bareli constituency by answering in the negative a question put toher at a Press conference in New Delhi inquiring whether ,she had decidedto change her constituency from Rae Bareli in U. P. to Gurgaon inHaryana and, secondly, that she must be deemed to have obtained thehelp of officials of the' State of U. P. who got rostrums constructed forher election speeches and electricity provided and arrangements made forloudspeakers. The learned Judge declared her to be disqualified undersection 8A of the Act from holding her office for a per'od of six yearsfrom the date of his order dated. 12th June, 1975. I deliberately employthe word "deemed" to describe the nature of the findings of the TrialJudge on both those questions because the learned Judge had. himselfindicated that they were inferences based entirely en circumstantial andnot on any direct evidence whatsoever of any instructions issued eitherby the original respondent or by her election agent during the periodfollowing 29th December, 1970. Election Appeal no. 887 of 1975 wasfiled against decisions on these two questions and consequential orders ofthe learned Trial Judge.

The Jaw, as found \n (he Act of !95i did not. mil'ks the EnglishAct of 1949, make a distinction between corrupt practices and illegalpractices. Section 1.23(7). as it has stood unamended. enumerates, asthe last of the 7 classes of corrupt practice as follows:

"S. 123(7). The obtain'ng or procuring or abetting or attemptingto obtain or procure by a candidate or his agent or, by any other personwith the consent of a candidate or his election, agent, any assistance other

288 SMT. INDIRA NEHRU GANDHI V. SHR1 RAJ NARAIN [VOL. LVD

than the giving of vote for the furtherance of the prospects of that candi-date's election from any person in the service of the Government andbelonging to any of the following classes, namely—•

(a) gazetted officers.

(b) stipendiary judges and magistrates ;

(c) members of the armed forces of the Union,

(d) members of ihe police forces ;

(e) excise officers.

(/) • • . - . . . •

(g) • • • • • • •

Explanation—(1) In this section the expression—

'agent' includes an election agent, a polling agent and any person whois held to have acted as an agent in connection with the elec-tion, with the consent of. the candidate.

(2) For the purpose of clause (7), a person shall be deemed toassist in the furtherance of the prospects of a candidate'selection if he acts as an election agent of that candidate."

It is clear that "the obtaining or procuring or abetting or attemptingto obtain or procure" had to take place either by a candidate or by his agentor by somebody "with the consent of the candidate or h's election agent",•Until the candidate had appointed an election agent, the action of anyother person could not constitute him automatically an agent so thathe may, by doing something voluntarily, succeed in making the candidateVicariously liable r'or his own actions whether he was or was not agazetted officer at the time when he committed the act complained of.The question of chaining assistance through "an agent" or "other personwith the consent of a candidate or his election agent" could only arisewhere such a case of obtaining assistance indirectly through others is sotup but not otherwise.

On issue no. !, the case set up in paragraph 5 of the petition is:

"Srimati Indira Nehru Gandhi obtained and procured the assistanceof the said Shri Yashpal Kapur for the furtherance of prospectsot her election from the constituency aforesaid in as much as thesaid Shri Yashpal Kapur, was a gazetted officer in the serviceof Government of India when his assistance was obtained andprocured the said Shri Yashpal Kapur. on the directionof Srimati Indira Nehru Gandhi organized the electioneering workfor her in the constituency during the period commencing from27th December, 1970 "

It is a case of liability resulting from an alleged "direction" givenby Srimati Indira Nehru Gandhi herself to Shri Kapur. No case ofprocurement of assistance of Sri Kapur through a third person is set upalthogh the word "procured" is mechanically lifted from section 123(7)and used. On issue no. 3, the case set up in para 9 of the petition isthat both Srimati Indira Gandhi and her election agent, Shri Kspur,"obtained and proceured" the assistance of Government officers, but no

E.L.R.] SMI, VND1RA NEHRU GANDHI V. SHRI RAJ NARAIN 2 8 9

diicctions or orders given by any one are mentioned there. Issue no. Ishows that the case which was put in issue and went on trial was whetherthe original respondent had herself issued some direction to Shri Kapur.issue no. 3 shows that what was in issue here was whether the Govern-ment officers mentioned there rendered the assistance indicated there "atthe instance" of the original respondent or her election agent. Thediscussion of evidence and findings of the learned Judge, particularly onissue no. 1 show that the learned. Judge had almost a new case for theelection petition and accepted it. This was, on issue no. 1, whetherShri Kapur had done some acts in circumstances which justify the inferencethat he was constituted a de facto aaent of the Prime Minister even beforehas was appointed her election agent on 1st February, 1971, and, on issueoo. 3, whether sending round of certain tour programmes with the approvalof the Prime Minister, in the background of certain long standing instruc-tions of the Comptroller and Auditor General, read with letters sent bythe Government of India, as long ago as 12th January, 1959, and 19thNovember, 1969, amounted to "implied" directions by the Prime Ministeror her election agent to the State Government to provide the facilitiesthe Government officials gave. Now. whenever a case of a liability by"implication", where there is such a species of liability in law, comparableto a criminal liability, is to be fastened upon an individual, the prosecu-tor is to be expected, as a part of an elementary duty to give fair noticeand a fair opportunity to meet what the individual has really to be madeliable for, either because of some act or omission of the individual con-cerned, or, even more so, for that of an agent or another person forwhich there may be some sort of vicarious liability, from facts showingconsent or agency, to give full particulars of circumstances from whichsuch implications or vicarious iiabilties may arise. I do not find thatthis was done here.

The law must lay down a duty to prevent, by taking some stepswhich are not taken, before a person is held liable for an omission. And,there is a different between omission to prevent the doing of somethingand aotual consent to the doing of it. I do not find, in the petition, anycase of a liability for omissions to do something set up. obviouslybecause the law does not impose upon the candidate the duty to preventthe giving of voluntary assistance by others whether officials or not.Nor is there any where in the petition a case of procurement by consentingto aid obtained through others. It has to be remembered that, on thelanguage of section 123 (7), a liability is not created by merely not reject-ing voluntarily given aid. The candidate may not often be aware of thevoluntarily given assistance so as to be able to reject it. A case of con-sent which can be legally set up is only one of consenting to active obtain-ing or procurement by an agent or by some other person who becomes,for the purposes o! the specific aid given and consented to, ordinarilyprior to obtaining it, as good as an agent employed by the candidate.

On the terms of section 123 (7) the following three types of cases ofactual obtaining of assistance, as distinguished from abetment or attempt-ing to obtain it, can be legally set up either exclusively, or alternatively,against a candidate : first, a direct obtaining of it by the act of the candi-date himself, secondly, an indirect or vicarious procurement of it by theacts of a duly constituted agent; and, thirdly, an indirect or vicariousprocurement of it by the acts of a person who, though not a duly consti-tuted agent, becomes constructively an agent, for the purpose of someparticular aid obtained, because it was assented to by the candidate ata time which must, ordinarily, be before the aid is given, so that the

2 9 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARATN [VOL. LVII

person through whom assistance is obtained is a constructive agent forthis particular aid at the time when it is given. The term procurementshould, strictly speaking, apply only in the last two types of cases. Areference to section 100(1) (b) further emphasises the position that acorrupt practice for which the High Court is to declare an election voidmust have been committed either "by a returned candidate or his electionagent or by any other person with the consent of the returned candidateor his election agent". A case falling under section 100(1) (d) (ii) of"a corrupt practice committed in the interest of a candidate by an agent.other than his election agent" is very different and postulates : first, acorrupt practice which can be committed only by an agent; and,secondly, the existence of such an agent. A case falling under section100(l)(d) requires also proof of the further fact that the result of theelection was materially affected by the corrupt practice.

As I read the petition, I find only the first of the three types ofcases mentioned above set up exclusively on issue no. 1 because there•fere no particulars there which could apply to the other two types ofcases. Obviously, the case set up was not of a corrupt practice by someact of a person to which the candidate became a party by merely givingconsent in which case the circumstances from which the consent was tobe inferred had to be indicated. It was a case of a direction given bythe Prime Minister herself to Shri Kapur who, it had to be presumedfor the purposes of such a case, would not have given the aid if thedirection or order was not there. This deliberately given "direction"had to be proved on the case set up. On issue no. 3, the petition men-tions only what was obtained, that is to say, the aid of particularofficers and the form it too; but, what caused that aid to be given orthe means adopted to get it were not set up there. I think these dis-tinctions should have been borne in mind. I shall indicate below howthe learned Judge, in dealing with a case of the first type only fallingunder seqtion 100(l)(b) of the Act, found in issue no. 1, mixed up factswhich could, strictly speaking, be relevant only in considering a case ofone of the other two types. And, in deciding Issue no. 3,what really and quite naturally flowed from and was the'well understood appurtenant of the office of a Prime Minister, andindeed, absolutely necessary for the due protection of the life and free-dom of movement of the holder of that high office, was mistaken by thelearned Judge to be the result of some kind of assumed solicitation foriaid. What the learned Judge entirely missed was that it is the act ofsolicitation for the aid of the officials mentioned in section 123 (7),whether successful or not. and not the mere fact that certain advantagesflow quite naturally and conventionally from the occupation of an office,without any solicitation, or the mere fact that some assistance is volun-tarily given by some one to an election campaign which is penalised bythe provision.

The definition given above in section 123 (7) meant, on an ordinaryand natural interpretation of words used, that the corrupt practice definedthere could not be committed by any person before there was a "candi-date" for an ejection. Hence, it became necessary to examine the defini-tion of a "candidate" found in section 79 (b) which laid down :

"79. In this part and in Parts VII and VIII, unless the context other-wise requires,—

* * # *


(b) 'candidate' means a person who has been or claims to havebeen duly nominated as a candidate at any election and anysuch person shall be deemed to have been a candidate as fromthe time when, with the election in prospect, he began to holdhimself out as a prospective candidate ;"

Section 123, defining corrupt practices is found in Part VII of theAct. Therefore, the definition of candidate in section 79, as it origi-jially stood, was sought to be applied by the Trial Court to determine.whether the original respondent could have committed a corrupt prac-tice at the time of the alleged commission of it. Before, however, Ideal with that question, it is necessary to examine what "obtaining orprocuring or abetting or attempting" meant in the light of the law laiddown repeatedly by this Court in cases of alleged corrupt practices.

The logical consequence of placing a charge of corrupt practice onthe same footing as a criminal charge is obligation to interpret the wordswhich define it strictly and narrowly. Indeed, any natural and ordinaryinterpretation on the words "obtaining or procuring or abetting or attempt-ing ' must carry with it the imperative requirement that the candidateconcerned or his agent must have intentionally done an act which hasthe effect contemplated by section 123(7). In other words, a "mens rea" or aguilty mind as well as an "actus reus" or a wrongful act must concurto produce the result contemplated by law. So far as election expensesare concerned, it is possible to conceive that even an unintentional result(i.e. expenses "incurred" exceeding the prescribed limit) may be enoughso that a duty to prevent this result may be there in law. But, section123 (7) requires actual intended acts of "obtaining" or "procuring" orattempting or abetting. For section 123 (7) results are immaterial.

In the case before us, the petition contains, as I have indicated above,necessary averment of a deliberate direction by the original respondent herself,so far as issue no. 1 is concerned, and of "obtaining" and "procuring"as regards issue no. 3. These are enough to denote the ingredients ofa mens rea. But, one will search the evidence in vain for any indicationof a mens rea or guilty intent on the part of the original respondent orof her election agent when she had appointed one. As regards bothissues 1 and 3, the learned Judge seemed to think that section 123(7)creates what is called an "absolute statutory liability", which does notrequire a mens rea, although, in dealing with issue no. 2, he had himself,after citing the necessary authorities, taken the view that a mens reawas also essential. He had himself, in dealing with issue no. 2, distin-guished Dr. Y. S. Parmar versus Hira Singh (A.I.R. 1959 S. C. 244), adecision with whose ratio decidpndi I have never, with due respect, felthappy in so far as it meant that a charge of corrupt practice under section123 (7) does not require proof of mens rea. It was decided on thestrength of a statutory presumption. There were other decisions of theSupreme Court under earlier law showing that mere appointment of agovernment servant as a polling agent could not be corrupt practice (SeeSatya Dev Bushahri versus Padam Dev and others [10 E.L.R. 103(S.C.)(1954)], Mahendra Kumar versus Vidyavati and others [10 E.L.R. 214(S.C.) (1954)]. Dr. Parmar's case (supra) had necessitated an amendmentin clause (2) of Explanation 1 of section 123 (7) of the Act so that agovernment servant, by merely acting as a polling agent, could not be"deemed" to have so acted as to further the prospects of a candidate'selection. The learned Judge had relied in his findings on issue no. 2,•on Babu Bhai Vallabli Da? Gandhi versus Pilloo Homi M'ody, 0 6 E.L.R.


108 at 123-124) and Haji Abdul Wahid versus B. V. Keskar (21 E. L. R.'409 at 432). But, when he came to issue no. 3 and right at the end ofhis judgment, to issue no. 1, he appears to have overlooked the basicrequirements of a mens rea and an actus reus, or, in any case, if he hadthese requirements in view, he erred in assuming that they existed here. Ithink he gravely erred in holding that some "actus reus" of ths originalrespondent lay hurried beneath circumstances which seem to me to reallypoint in the opposite direction. Sometimes, even if direct evidence islacking, circumstantial evidence, which inescapably points to a particularconclusion, may be even better. But, where is that evidence here ? 1 failto see it and none was pointed out to us.

Let me here quote the exact language used by the Trial Judge himselfin giving his findings on the first part (relating to December 27, 1970 to-January 13, 1971) of issue no. 1 of the "first set" of issues combined withthe issue no. 1 of the additional issues, both issues, for some inexplicablereason, being identically worded. The learned Judge said:

"Learned counsel for the respondent then urged that even acceptingthat Shri Yashpal Kapur delivered a speech at Munshiganj on7th January, 1971 and that he canvassed support for the respon-dent in that speech, he was not an election agent on that date, andthere is no evidence of the fact that he had been instructed todo so by the respondent no. 1. Learned counsel stressed that,consequently, it should not be held on that basis that the respon-dent no. 1 obtained or procured the assistance of Shri YashpalKapur for the furtherance of her election prospects.

I have given my careful consideration to this argument as we'll, butI regret my inability to accept the same. As also stated earlier,Shri Yashpal Kapur was occupying a position of trust and confi-dence with the respondent no. 1 since quite a long time. Duringthe period in question he was Officer on Special Duty in therespondent no. l's Secretariat. In 1967 he had resigned fromhis post for the sake of respondent no. 1 to be able to do herelection work in the' constituency. After that was done, he wastaken back in the respondent's Secretariat as Officer on SpecialDuty. Respondent no. 1 held herself out as a candidate' on 29thDecember, 1971. On 5th of January, 1971 Raja Dinesh Singhwas sent to the constituency. On 7th of January, 1971 ShriYashpal Kapur visited Rae Bareli, and, on the own admissionof respondent no. 1, he did so with previous notice to the respon-dent no. 1. The subsequent events also appear to be material,fcr, according to Shri Yashpal Kapur immediately on returnfrom Rae Bareli he held a talk with the respondent no, 1, on9th or 10th of January, 1971, on 13th January he again resignedftom the post and the same day set out once again for theconstituency of the respondent no. 1. It was again he who wasultimately appointed election agent for the respondent no. 1. Itmay be added that it was not possible to adduce any directevidence on the point whether the respondent no. I instructed'Shri Yashpal Kapur to go to Rae Bareli on 1th Januarv. 1971for any election work. That can be inferred only on the ha.usof the surrounding circumstances. I have already mentionedthose circumstances above and to my mind the only inferencethat can be drawn on the basis of those circumstances is that

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIK 2 9 3

the respondent no. 1 went to Rae Bareli on the aforesaid dateunder instruction of the respondent no. 1 for doing preliminarywork pertaining to her election.

. To sum, therefore, it is satisfactorily proved that the respondent no. 1during the period ending on 13th January, 1971 obtained pro-cured the assistance of Sri Yashpal Kapur,, a gazetted officer inthe Government of India for the furtherance of her electionprospects, inasmuch as Shri Yashpal Kapur was made to go toRae Bareli on 1th January, 1971 and deliver a speech at ShaheedMela in Munshiganj canvassing support for her candidature."

Now, it is a well settled rule, repeatedly laid down by this Court,that allegations of corrupt practice in the course of an election must be(judged by the same standards as a criminal charge. And, no rule ofevidence, in judging guilt on a criminal charge; is more firmly rootedthan that no charge, resting on circumstantial evidence, could be heldto be proved beyond reasonable doubi unless the chain of circumstancesis so complete and so connected with the charge that it leaves no otherreasonable hypothesis open for the Court to adopt except that the offenderhad committed the offence alleged (See e.g. Smt. Om Prabha Jain versusCharan Das and another, AIR 1975 *S.C. 1417 at 1426).

The learned Judge dealt with evidence on fssue no. 1 relating to theactivities of Shri Yashpal Kapur by dividing it into three periods:(1) from 27th December, 1970 to 13th January, 1971, when Shri Kapurhad not resigned from Government service; (2) from 14th January,1971 to 25th January, 1971, the period after Shri Kapur's resignation uptoits acceptance by the President of India evidenced by a notification dated25th January, 1971 ; (3) from 26th January, 1971 to 6th February, 1971,the period after the acceptance of Shri Kapur's resignation and upto thedate of the publication of it in the official Gazette. The learned Judgeconsidered only the first two periods material as he held the activities inthe third period to be above board because Shri Kapur was free to dowhat he liked in this period. Hence, the fact that the original respon-dent appointed Shri Kapur her election agent on 1st February, 1971 madeno difference to the result in the third period. But, we will find that avery glaring feature of the findings relating to the first two periods is thatthe original respondent is held vicariously responsible without anythingbeyond the activities of Shri Yashpal Kapur and his position as an Officeron Special Duty in the Prime Minister's Secretariat to justify the inferencethat he had an express or implied authorisation on direction from thePrime Minister to do anything in general or in particular ori her behalffor her election.

Let us take the first period. What was required to be approved,beyond all reasonable doubt, from the evidence on record on this partof the case, was that Shri Yashpal Kapur had been instructed or directedby the original respondent to render the help, if any, that he did pveby the speech he was alleged to have made at a fair at Shaheed Mela(Martyrs' fair) at Munsiganj in Rae Bareli on 7th January, 1971, can-vasssing support for the original respondent's election—an allegation whichShri Yashpal Kapur had.denied in so far as any mention of the originalrespondent's candidature is concerned. Shri Kapur admitted that he hadgone there with Shri Gulzarilal Nanda, a former Minister of the Centra](jovernment, but said that he had only, when called upon to do so, paidrf s tribute to the memory of the martyrs.

20—345 Elec. Com./ND/81


The learned Judge held that the recollection of Shri Yashpal Kapurabout what he said at the Shaheed Mela on 7th January, 1971 was lessreliable than the statement of Shri Vidya Shankar Yadav (P. W. 43), anAdvocate belonging to an opposition party, supported by his political co-workers, Nankau Yadav (P. W. 28)—a witness who, in his transparentanxiety to appear truthful, went so far as to make the absurd assertionthat he had not told any one, before he appeared in the witness box,that he had attended the Shaheed Mela on 7th January, 1971, and whocould not remember cifner ths, date of his marriage or the dates of birthsof his children but asserted that he had noted 7th January, 1971 withouteven hav.ng ever talked on any previous occasion to any one about thisdate if he is to be believed—and, by Shri R. K. Dixit (P. W. 31), a jointeditor of a newspaper, who claimed to be present on the occasion, andwho, while reporting other facts and reasons in his newspaper for believ-ing that the original respondent will stand from the Rae Bareli consti-tuency, had not mentioned what he cla'med, in the witness box, to havebeard iShri Yashpal Kapur himself say at the Mela. Obviously, boththese witnesses, if they were not committing perjury, did not have goodmemories on their own admissions. But. the learned Judge had believedthem quite unhesitatingly although the meeting at Shaheed Mela,addressed by Shri Yashpal Kapur, had not even been given any promi-nence in the pleadings by being atleast specifically mentioned in thepetition.

The learned Judge disbelieved the evidence of the original respon-dent's witness Shri Sarju Prasad (R. W. 12), the Headmaster of a School,who had denied that he ever accompanied Shri Nankau (P. W. 28) to theShaheed Mela as claimed by Nankau. The ground for holding thatShri! Sarju Prasad must be deposing falsely appears to me to be veryunfair both to Shri Sarju Prasad and Shri Gaya Prasad Shukla, a Con-gressman, who was suspected, without the slightest foundation in evidence,of having induced Shri Sarju Prasad to give perjured evidence simplybecause Shri Gaya Prasad, who did not even appear as a witness^ wasia member of the Congress (R) Party and was once connected with theSchool in which Shri Sarju Prasad served. The learned Judge said:

"It is quite likely that once Nankau had conceded in cross-examina-tion that Sarju Prasad had accompanied him in the Shaheed Mela,pressure was brought to bear on Sarju Prasad (R. W. 12) byGaya Prasad Shukla in order to make him appear as a witness•in the case and give evidence to contradict the testimony ofNankau! It is true that in his re-examination Sarju Prasad(R. W. 12) admitted that on the date on which he was examinedas a witness in the case the school was being run by the Govern-ment under the control of the District Basic Education Officer.However, the association that Gaya Prasad Shukla had with thePathshala in his capacity as Adhyaksha, and consequently withSarju Prasad, who was a teacher in that Pathshala, could nothave been wiped off overnight merely because the school wastaken over by the Government to be run under its own officers."

The reasons given by the learned Judge for holding that it was"abundantly clear" that Shri Ram Pal (R. W. 13), another witness ofSrimati Gandhi, was "also not a truthful witness", were:

"Now, since Ramesh Chand Shukla, Advocate is a resident of thesame village where Ram Pal resided, and since he was an impor-tant worker for the respondent no. 1 during the election and was


also her Pairokar at some stage, the possibility of Ram Palhaving been pressurised by Shri Ramesh Chand Shukla cannot beexcluded. Together with it there is also the fact that Shri GayaPrasad Shukla, another important worker of the respondent no. 1,happened to be the Adhyaksha of the Zila Parishad during theperiod the witness was examined in the case. It is a matter of com-mon knowledge that the Adhyaksha of the Zila Parishad alwayswields 'influence in the rural areas. It will not be out of placeto add that when it was put to Ram Pal in Cross-examinationas to which party did Sri Ramesh Chand Shukla belong, hepleaded ignorance about it. It cannot be accepted for anymoment that even though Shri Shukla resided, in thevillage in which this witness resided, and even thoughShri Shukla was such a prominent worker of the Congress party,Ram Pal would not have known about it".

I do not know how, when workers of the Congress party weredivided into two camps and had been changing sides, from time to time,ignorance of a worker's precise party loyalties meant that Ram Pal wasuntruthful. If mere possibilities of being "pressurised" or biased wereenough to tar a witness as untruthful, it is difficult to see how or why thewitnesses of the election petitioner, on whom lay the primary burden ofproof could escape similar treatment V. S. Yadav, was, no doubt, anAdvocate. But, he was not even paying Income-tax. He felt free, ona working day in Courts, to go to the Mela. He was enthusiatic enoughas a.,member of an opposition party to object, according to himself, toShti Yashpal Kapur bringing in the candidature of the original respon-dent even at a meeting which, according to him, consisted mostly ofCongress (R) sympathisers. Shri Yashpal Kapur was not so ignorant orinexperienced in election matters and could hot be assumed, without anjevidence to support the assumption, to be so imprudent as to make aspeech when he would know that, as he was still a Government servantthis would be misinterpreted.

Let us, for the sake of argument, assume that Shri Yashpal Kapurhad been over powered by such a desire to exhibit an excessive zeal,whfich got the better of his prudence that he, believing that a publiclymade gesture of his loyalty was needed on this particular occassion, castall caution to the winds and, while paying the tribute he was called uponto pay to the memory of the martyrs, suddenly decided to jump into theelectoral fray by making an appeal at the martyrs' mela to support Smt.Indira Gandhi, as though the speeches of all those local leaders who, inaddition to Shri Gulzarilal Nanda, a former Minister, are said to havespoken there to the same effect, were not enough. What follows? Itas here that we find the weakest link in the misty and fanciful chain ofjthe learned Judge's logic. Where was the evidence that, whatever elseIShri 'Yashpal Kapur may or may not have been supposed to do on hisvisit to Rae Bareli, this particular piece of "frolic", a term used by lawrelating; to scope of authority, carried the "direction" of Smt. IndiraGandhi himself behind it ? Indeed, there is not only not a jot of evidenceto suggest that Shri Yashpal Kapur was actually asked by Smt. Gandhito go to Rae Bareli to do anything for her election on this visit, but there isample absolutely unshaken evidence of Shri Yashpal Kapur to the con-trary, supported by the evidence of the Prime Minister herself, which thelearned trial Judge had, for some reason, entirely ignored. In any case,

it is utterly unthinkable that the Prime Minister herself could have con-

2 9 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL, LVII

reivably authorised Shri Kapur to go to Munshiganj and make a public•peech, while he was still a Government servant, to support her candi-dature. And, if he had no authority from her either to act generallyor to do any particular act on her behalf, how could each and every actionof Shri Kapur possibly make the Prime Minister legally liable vicariouslyfor it ?

The learned Judge, as is evident, from his summary of evidence andconclusions, relied on circumstantial evidence only. But, in order thatthe circumstances should have a conclusive effect, so as to exclude anyreasonable hypothesis except that of guilt, they had to point in onedirection only and in no other. What is the position that emerges froma consideration of the circumstances found and detailed by the learnedJudge Himself ? It was held that Shri Yashpal Kapur was occupyinga position of trust and confidence with the original-respondent for quitea long time. Indeed, his evidence shows that he was so attached to theflamily of the original respondent and the political and national causesits members had represented that he was just the type of person who could,even without the slightest suggestion on the part of the original respon-dent, have voluntarily taken upon himself the duty to do whatever hecould do in his private capacity to help her return at the election.Indeed, his private capacity, as a person attached to the family ofthe original respondent and to the causes espoused by its members, couldvery well be considered more important by him than his governmentservice. And, this is exactly what the findings given by the learnedJudge relating to services rendered by Shri Yashpal Kapur at the previ-ous election of the original respondent showing how he had resigned hispost on a previous occasion, to help in her election, indicated.

In the passage from the judgment, quoted above, the learned Judgedraws an inference of a previous instruction, from the Prime Ministerto Shri Kapur, to say what he is alleged to have said in a speech,because, inter alia, Shri Kapur met the Prime Minister on his returnfrom Rae Bareli. Again, the nec-ssary inference of a previous intima-tion by Shri Kapur to the Prime Minister of his intention to visit RaeBareli, could not be that there was any authority or direction given bythe Prime Minister to Shri Kapur to do or to say anything on her behalf.All this would lie in the realm of pure conjecture and suspicion. Itleft other possible and more reasonable inferences wide open.

The learned Judge had himself held, so far as use of rostrums isconcerned, that the Prime Minister sheds her personality, as. the holder ofher office, and assumes the role of a mere candidate as soon as she ascendsa platform to make an election speech. But, when the learned Judgedeals with the action of Shri Kapur, in making a speech from a platformat a martyrs' mela, because Shri Kapur is called upon to pay his tribute!to the martyrs, he holds that not only must the capacity of a Governmentservant unshakably stick to him, but that Shri Kapur must have beenauthorised by the Prime Minister herself knowing, as she did, that he wasa Government servant, to go and make a public speech at the Mela andcanvass for votes for her. I do not think that we can indulge in a flightof fancy which could be described as "flamboyant".

The uncontroverted evidence of Shri Kapur which had been ignoredby the Trial Judge was that it was the special business of this witness, asan Officer on Special Duty in the Prime Minister's Secretariat, in his ownwords, "to deal with the representations received from public and other

E.L.R.] SMT. INDIRA NEHSU GANDHI V. SHRI RAJ NARAIN 2 9 7

works of semi-political nature7'. It is difficult to understand how theoccupant of such a difficult and responsible office as that of the PrimeMinister of the numerically largest democracy in the world can possiblydischarge his or her duties towards the public satisfactorily without thea.'d of such officers. Naturally, as the Prime Minister was contemplatingstanding for election from the Rae Bareli constituency, it would not beoutside the scope of the duties of such an officer to attend especially tothe complaints and representations from Rae Bareli. He stated that ShriGuizarilal Nanda. who was then the Railway Minister, had received somerepresentations from the Rae Bareli. He also said that he had. irontime to time, forwarded some representations to Shri Guizarilal Nandawho had asked him to accompany him to Rae Bareli. Thereforeapparently without being asked by the Prime Minister, but, after inform !n£hJr cf his intention to go with Shri Guizarilal Nanda, the witness had. ffi\Vi: course of the performance of duties especially assigned to him since?his appointment, visited Rae Bareli in the company of Shri GuizarilalNanda. This could not be outside the scope of his duties.

Again, without any contradiction from any evidence whatsoever, hisstatement, unquestioned also in cross-examination, was that the PrimeMinister did no: at a,;y time, ask him. in his own words, "either directlyor indirectly to do anyth'ng pertaining to her election". The PrimeMinister's replies to interrogatories served upon her show that she had nopersonal knowledge o/ what Shri Kapur did at Rae Bareli before he wasappointed her election agent. Tt is also apparent from the evidence ofthis witness and of the Prime Minister herself that, when he expressed hisdesire en 9th or 10:h January, 1971, to the Prime Minister to resign fromhis post as Officer on Special Duty, she asked him to think over the matteras this would mean that he could not return to his post. He had earliersaid that this decision was taken with a view to do work for the publicin general and the Congress party in particular as he wanted to enterpublic life. It is clear that the Prime Minister had left the decisionentirely to the free will and option of Shri Kapur who had been asked toponder over it carefully. When Shri Kapur had informed the PrimeMinister again on January 13, 1971 that he had reached his final decisionafter diK consideration, to resign from his post so as to be able to d(public work, as he iiad political ambitions, she had agreed to it and hacp^ked him to see Shri P. N. Haksar, who was Incharge of the PrimeMinister's Secretariat. He informed P. N. Haksar about this decision onthe telephone and then met him an hour later on January 13, 197! tosubmit his letter of resignation. Shri Haksar, relying upon Rule 3 of theGovernment of India Transaction of Business Ruies, had orally acceptedthis resignation, as the head of the Prime Minister's Secretariat. He toldShrj Kapur that he was a free man. Naturally, the necessary notification,show'nq iha! Shri Kapur was relieved of his office with effect from January14, 197!, was to follow.

The statement of Shri Kapur, supported by those of the PrimeMinister and Shri P. N. Haksar, had been accepted by the Trial Court ascorrect so far as tender of this resignation and its acceptance, in all the'tages, followed by the notification in the Gazette, went. The karnedJIKFW h^d ''-at the President pave his assent on January 25, 1971. ShriKrr:;riv letter of resignation must have bc;n duly forwarded and was actedupon. This was (he learned Judge's finding. Shri Kapur did not work in thePrime Minister's Secretariat after January 13, 1971 and he drew no sa'aryas a Government servant after that date. The notification in the Gazettecould not, according to rules, take place until Shri Kapur had handed over

2 9 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVIL

charge. He signed and completed the necessary papers relating to relin-quishment of the charge of his office on January 13, 1971, but he put thedate January 14, 1971 under his signature on the document evidencing aformal handing over of charge as it was to take effect from that dale. TheTrial Court held that the resignation of Shri Kapur would be effective fromJanuary 25, 1971 notwithstanding the fact that his request to be relievedfrom office, with effect from January 14, 1971 had been accepted and actedupon immediately by Shri P. N. Haksar as the officialhead of the Prime Minister's Secretariat. The papers were sentto the Secretariat of the President of India for completion offormalities. The formal Presidential sanction having been obtained, thenotification dated January 25, 1971, declaring the resignation, of Shri Kapurto be effective from January 14, 1971. was published on February 6, 1971.

On the facts stated above, there could be no doubt whatsoever thatShri Kapur was not asked to do anything at all in connection with herelection by the Prime Minister herself, but he had decided to take interestin it voluntarily as he had some political ambitions, and, therefore, hehad asked the Prime Minister to be relived of his office in her Secretariatwith effect from 14th January, 1971. It is unfortunate that the learnedJudge thought that there was something almost sinister in Shri Kapur,taking such interest in the election or in hoping to enter political lifethough absolutely legitimate means. There is not the slightest reason forany one who fairly examines the evidence of Shri Kapur, supported bythat of the Prime Minister and Shri P. N. Haksar, to doubt the motivesor the veracity of Shri Kapur, on this point. He frankly stated that hisambition was to enter political life. In any case, the motives of ShriKapur were not on trial. If such assistance as he may have renderedwas entirely voluntary, without any request or solicitation from the PrimeMinister, I do not see how, on the view of the correct legal position statedabove, it made any difference to the result even if Shri Kapur hadcontinued to be a Government servant up to 25th November, 1971. ShriP. N. Haksar was aware of and cited the applicable rule for a resignationby a temporary Government servant, as Sri Kapur was and seated also thepractice followed, in his experience, in such cases. He presumablythought that the resignation was effective from 14th January, 1971. ShriKapur, also acted upon that assumption and in that belief. The PrimeMinister, who could not be expected to exnmHe suo moiu the questionwhether Shri P. N. Haksar, and Sri Kapur, were right in their beliefsabout the effectiveness of the resignation, assumed that everything wasalright. In any case, there could not possibly, on these facts, be any me usrea on her part.

The learned Judge having accepted, on the unimpeachable evidenceof the date of notification on 25th January, 1971, published in (he officialGazette on 6th February, 1971, that Shri Kapur, must have handed in hisresignation in a letter of 13th January, 1971, it is very difficult to see howone could possibly doubt the correctness of the statement of Shri P. N.Haksar that, as the Head of the Prime Minister's Secretariat, he hadaccepted the resignation orally and forwarded it on for necessary action.The resignation had taken place with the consent of the Prime Minister.It is inconceivable, in the circumstances, that Shri P. N. Haksar. wouldnot have as the Head of the Department in which Shri Kapur, was working,agreed to relieve him of his duties by telling him that he was a free man,and, thereby, accepted his resignation. He. very honestly, stated that hedoes not remember whether he wrote anything on the margin of that letter.


He must have made so many indorsements on so many letters and docu-ments that it was expecting the impossible to hold that he must rememberwhat he wrote on every one of them. The only ether ground given bythe learned Judge for doubting the correctness of this version, whichcompletely accords with the natural md ordinary course of officialbusiness, was that the additional written statement, filed a year after thecrig'nal written statement, mentions this fact for the first time. It seemsto me that the learned Judge was carrying his suspicions to excessivelengths. The real question involved was the legal effect of the factsaccepted by the learned Judge to be correct. These were : firstly, that

-such a letter of resignation was handed in on 13th January, 1971 by ShriKapur to Shrr Haksar asking to be allowed to resign with effect from 14thJanuary, 1971; and, secondly, th;s very request was accepted by thePresident of India and incorporated in a notification dated 25th January,1971.

The learned Judge had found Shri P. N. Haksar's statement, thatsuch an oral acceptance, followed by the necessary notification afterwards,was "rather interesting", and, that the resignation could not be effectiveuntil 25th January, 1971, the date of drafting the notification. But, whatthe learned Judge completely overlooked was that the notification itselfm3.de the resignation effective from 14th January, 1971, the dale fromwhich Shri Kapur, had neither worked in the Prime Minister's Secretariatnor drawn any salary. There was no plea anywhere, and there is noexpress finding on it, that the President's notification itself, which made theresignation effective from 14th January, 1971, was invalid to the extentthat it purported to give any retrospective effect to the resignation, in thesense that it made it effective from a date prior to its actual acceptance.The fact that it is made effective from 14th January, 1971 shows that theletter must have reached the President's Secretariat with the request thatthis should be done. And in the ordinary course of business, the headof the office concerned makes his endorsement on such letters.

The learned Jud~o had relird on Rule 5 of the Central Civil Services(Temporary Service) Rules, 1949, which runs as follows:

"5 (a) The service of a temporary Government servant who is notin quasi permanent service shall be liable to termination at anytime by notice in writing given either by the Government servantto the appointing authority, or by the appointing authority to theGovernment servant.

(b) The period of such notice shall be one month, unless otherwiseagreed to by the Government and by the Government servant:

Provided that the service of any such Government servant may beterm'nated forthwith by payment to him of a sum equivalent tothe amount of his pay plus allowances for the period of thenotice or as the qase may be, for the period by which such noticefalls short of one month or any agreed longer period".

The learned Judge had referred to Halsbury's Laws of England,Volume V (Simond's Edn.), p. 61, where it was laid down that in a"corporation created by Statute for the discharge of publ'c functions amember may not have an absolute right to resign at will, because the lawmay cast a duty upon the person elected to a public office to act in thatoffice in public interest." He also referred to an American case, EdwardsM. Edwards versus United States, (1880) 26 Lawyers Edn. 31 to the effect

3 0 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL, LVII

that only the appointing authority could have accepted the resignation ofan occupant of a public office, and that, under the special provisions ofthe law, the holder of such an office could be subjected to a penalty fora wrongful refusal to perform the duties of his office. The desire or wishof the holder of the office had to give place to public interest in suchspecial cases. It is clear that the cases cited could have no relevancewhatsoever for an Interpretation of Rule 5 set out above.

The learned Judge had then relied upon Raj Kumar versus Union ofIndia A.I.R. 1969 S. C. 180-1968 (3) S.C.R. 857, where this Court heldthat "normally, and, in the absence of any law or rule governing theccndit'ons of his service to the contrary, it will not be open to the publicservant to withdraw his resignation after it is accepted by the appropriateauthority". In that case, there was a dispute between the Governmentservant and the Union of India on the question whether the Governmentservant concerned could withdraw his resignation after it was accepted.It was held that he could not. It was not a case of an agreement betweenthe parties at all as to the date from which the resignation could effectivelyterminate service, it is true that, in Raj Narain versus Srimati Indira NehruGandhi, AIR 1972 S.C. 1302-1972 (3) S. C. R. 841 when this very mattercame up to this Court, to decide whether an issue should be struck onit, this Court had sent back the matter to the High Court after holdingthat an issue should be framed to decide when Shri Kapur's resignationbecame effective and that this question "will have to be examined withreference to his conditions of service-". Now, it is clear, from the ruleitself, that a condition of Shri Kapur's service was that the Governmentand the Government servant could dispense with the period of notice if itwas mutually agreed upon to do that. Rule 5 (b) makes' that abandantlyclear, the learned Judge, for some reason, completely overlooked thisaspect.

Neither the Government nor the Government servant is in a worse posi-tion than an ordinarily master or servant on a matter governed by contract.In fact, Article 310 makes it clear that, in such a case, the tenure of officeof a Central Government servant is "during the pleasure of the President".In the instant case, the President's pleasure was contained in the notifica-tion dated 25th January, 1971 showing that the President had acciptedthe resignation of Shri Kapur with effect from the forenoon of 14th Janu-ary, 1971. And, this is what Shri Kapur himself wanted. Hence, thereis no difficulty at all in accepting the correctness of a resignation effectivefrom the date which both parties to the contract, on patent facts, hadagreed to. No rights of an innocent 3rd party were either involved oraffected by such an acceptance of the resignation from the date immediatelyafter the date on which Shri Kapur had tendered his resignation. That,as already pointed out, was also the date after which he had ceased towork or draw his salary. It is inconceivable that the Law should thrustthe status of a Government servant upon one who does not want it, parti-cularly when the Government also does not, in public interest, refuse torelieve him by making him stick to any terms to the contrary in his con-tract. Our law, on this point, is not so monstrous. The position acceptedby the learned Judge appears to me to be quite indefensible. However,there was an amendment also in the law by section 7 of Act 40 of 1975,adding the following at the end of the Explanation to section 123 (7) ofthe Act :

"(3) For the purposes of clause (7), notwithstanding anything contain-ed in any other law, the publication in the official Gazette of the

appointment, resignation, termination of service, dismissal or re-

E.L.R.] SMT, INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 301

moval from service of a person in the service of the Central Gov-ernment (including a person serving in connection with the admi-nistration of a Union territory) or of a State Government shall beconclusive proof—

(i) of such appointment, resignation, termination of service, dismissalor 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 thecase may be, is stated in such publication^ also of the fact thatsuch person was appointed with effect from the said date, or inthe case of resignation, termination of service, dismissal or re-moval from service, such person ceased to be in such service witheffect from the said date".

T find that this amendment, which was made retrospective, by sec-tion 10 of Act 40 of 1975. makes the legal position still clearer. The learnedCounsel for the election-petitioner had assailed the validity of this amend-ment on the ground that powers conferred by it upon the Government arebound to be abused by those who hold the reins of Government. I amafraid I am unable to see any force in this contention. The presumptionis that a bones fide use will be made of this power lodged in such respon-sible hands. If such powers are ever exercised in a mala fide manner, itis the particular exercise of the power that can be questioned and struckdown. The provision does not become invalid merely became it couldbe abused as practically any provision of law can be by those who maywant to do so.

I will next take up the period from 14th January, 1971 up to 25thJanuary, 197!. when Shri Kapur is said to have gone and voluntarily workedat Rae Bare!! and to have done whatever he could to organise the conductof the Prime Minister's election after his talks with the Prime Minister. Theposition with regard to allegations in this period is summarised ai follows:

1. He is said to have either led or to have joined a procession of carstaken out on 14th January. 1971 in the town of Rae Bareii as apart of i" c ?-e"'io^ (p.rnpaign for the original respondent althoughShri U. S. Yadiiv (i3. W. 41), an Advocate, who was a staunchS. S. P. worker, produced on behalf of the election-petitioner, clear-ly stated that he had not seen Shri Kapur in that procession, whichhe watched but he had teen him only on 15th January, 1971. Thelearned Judge, however, not only relied on the evidence of ShriR. K. Singh (P. W. 42) but also on that o7 Shri U. S. Yadav tohold that Shri Kapur must have been "associated with" tiut pro-cession of people seen in cars and jeeps taken on 14th Ja.'ifu-ry.1971 shouting Congress (R) party slogans to start off the sectioncampaign.

2. On 17th January, 1971 Shri Kapur is said to have i > "4 nan election meeting held at the Clock Tower. On | l s il ithe learned Judge accepted the evidence of Shri R K D ' u P3!*, ,?nd Shri R.'K. Sirgh (P. W. 42). although boih th <= » -only «*3t?H that seme confusion took place at the ^ ( m ^ HR, K. Dix.it did not even remember whether any p -ch v,as nn _at all by Shri Kapur. Sri R. K. Singh also di t htj tt tShri Knpur actually made a speech but Had saiJ tl t. Ntbance took place when Shri Kapur wanted to ' / I a % e h

302 SMT. INDIRA NEHRU GANDHI V- SHRI RAJ NARAIN [VOL. LV1I

as a result of which he could not do so". The learn-ed Judge rejected the evidence of Shri V. C. Dwivedi (R. W. 18)supported by Shri Kapur (R. W. 32) himself, that Shri Kapurwas not present at all at this meeting. However, OQ the evidenceof the election petitioners witnesses themselves, Shri Kapur coulddo nothing whatsoever in furtherence of the election of the originalrespondent at this meeting.

3. On 19th January, 1971, Shri Kapur is said to have addressed ameeting at village Nihasta where he is said to have gone in thecompany of Prof. Sher Singh, a Minister of State in the Govern-ment of India. Although the tour programme of the Minister con-cerned showed that the Minister went to that village to inauguratea Telephone Exchange on 18th Januarys 1971, supported by theevidence of Jagannath Prasad (R. W. 16). a resident of villageNahasta. and K. D. Pandey (R. W. 17) Post Master, S\:b-PostOffice, yet the learned Judge preferred the evidence of Shri R. K.Singh (P. W. 42) for the election-petitioner despite the infirmityin this evidence that it was neither consistent with the tour pro-gramme of the Central Government Minister sent in advance forthis function nor with the unshaken evidence of those who orga-nised the function.

4. It was alleged that Shri Kapur on 19th January, 1971, pgain inthe company of Prof. Sher Singh, the Central Government Mini-ster, mentioned above, attended a meeting held in Lalgassj. Sofar as this particular allegation is concerned, the learned Judgethought that it could not be accepted because it \v:-;s supportedonly by one highly partisan witness, Shri G. M. Pandey. against4 faultless witnesses : Abdul Jabbar (R. W. 25), Fateh BahadurSingh (R. W. 26). Tshwar Chand (R. W. 27), and Ranjit Sinah(R."W. 28).

5. On 19th January, 1971, Shri Kapur was said to be present at theinaugural function of the Telephone Exchange at Bch'ta Kaian andis said to have delivered a speech there, the learned Trial Judgeaccepted the evidenc of Pt. Shashank Misra (P. W. 32), admittedlya highly partisan witness, who was believed because of a questionput to him in cross-examination suggesting that there was uproarwhen Shri Kapur started speaking so that nobody could hear whathe said, the learned judge held that this amounted to an admis-sion of Shri Kapur's presence and participation in this meeting.

6. Shri Kapur was alleged to have delivered a speech on 18th January,1971, at the foundation laying ceremony of a new Post Officebuilding at Rae Bareli in the company of Prof. Sher Singh, theCentra! Government Minister, mentioned above. This allegationwas not accepted on the ground that it was not supported by anyevidence whatsoever.

All that the witnesses could remember of Shri Kapur's speech, on eachoccasion, was that he supported the original respondents candidature. Outof allegations of act said to have been committed on 6 occasions, by ShriKapur in this period the learned Judge found only 4 instances proved. Outof these, it was clear that Shri Kapur could not have done anything infurtherance of the original respondent's election on 17th January, 1971,

E-L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIK 303

when, according to the election-petitioner's witnesses, he was not even allow-ed to speak. Even if all the election petitioner's witnesses accepted by thelearned Judge are to be implicitly believed for this period the position is :

(a) On three occasions in this period, from 14th January, 1971 to 25thJanuary, 1971, Shri Kapur is shown to have made a speech sup-porting the original respondent's candidature.

(b) There is no evidence whatsoever from any source that Shri Kapurdid so on any of these three occasions either after having beenrequested by the original respondent to do so or with her know-ledge or consent or approval.

(c) The only evidence in the case, on the decisive question, comingfrom the side of the original respondent, is that Shri Kapur did.whatever he did, entirely on his own initiative and in his private andindividual capacity without the slightest solicitation, request, or sug-gestion from the original respondent who did not even know whathe was doing at Rae Bareli. And, this evidence, being uncontro-verted, could not be rejected. In fact, it was not rejected bv theTrial Court. It was ignored by it presumably under an erroneousbelief that it was not material.

There is no evidence whatsoever that Shri Kapur was constituted a sortof general de facto agent of the Prime Minister even before he became herelection agent on 2nd January, 1971. Indeed, such a case, that Shri Kapurwas constituted a de facto agent of the Prime Minister, and, if so, whatwas the scope of his authority, was not set up in the petition and was notput in issue. Therefore, there, is no finding oni it by the learned Judge-Could the Court then, without any proof of any specific request or solicita-tion or even knowledge of or consent to the doing of any particular acts ShriKapur may have done in this period make the Prime Minister liable forthem in any way? I think not. The election petitioner had to be confinedto the case he had set up. This as already pointed out, could only be. ona fair reading of the petition on issue no. 1, one of specific authorizationof particular individual acts of Shri Kapur. Of this there is not only noevidence whatsoever on record but the evidence is to the contrary.

Issue no. 1, as framed, and the form of findings given on it indicatethat the learned judge realized that the election petitioner's case must beconfined to proof of specific acts or statements of the original respondentherself which induced Shri Kapur, as a Government servant, to give someassistance in furtherance of her election, but the discussion of evidence andthe inferences which the learned Judge reached upon the circumstancesfound, indicated that the learned Judge thought that Shri Kapur was con-stituted a sort of de facto agent even before Shri Kapur was clothed withlegal authority on 1st February, 1971. This appears to me to be the under-lying current of thought and reasoning of the learned Judge. Thus theresult was that what was really decided was the case of a de facto agencywhich was neither set up nor was the subject-matter of an issue. I there-fore, think that the principle that no amount of evidence could be lookedinto on a case not really set up was applicable here. It was quite unfairto expect the original respondent to meet a case not set up at all. Furthermore, the case of de facto agency was, in the circumstance; of the parti-cular case, only possible to set up if the Prime Minister a?A made somerequest to Shri Kapur to go and conduct the election campaign even befoiehe vvas appointed her election agent on 1st February. 1971. If this was not-

established by evidence on record, it could be said that the bottom was

304 SMT. INDIRA NEHRU GANDHI V. SHRi RAJ NARAIN [VOL. LVII

knocked out of even such a hypothetical case. Had a case of de factoagency been even argued, it is not conceivable that certain cases of Divi-sion Benches of the Allahabad High Court itself would not nave been citedto show on what kind of evidence it could succeed.

In Rusiom Satin v. Dr. Sampoornanand and others (20 E.L.R. 221 at243) it had been held by a Divisioa Bench of the Allahabad High Court(V. Bhargava & J. N. Takru, JJ.) inter alia (at p. 243):

"So far as the election law in this country is concerned it is a creationof statute and as such has to be interpreted in accordance with theprovisions of that statute. Section 100 of the Act cbarly refersto corrupt practices committed by four classes of persons only,viz. the candidate, his election agent, persons acting with the con-sent of the candidate or his election agent, and those acting with-out such consent. The corrupt practices committed by the firstthree classes of persons are covered by section 100 (1) (b), whilethose committed by persons falling in the fourth class are providedagainst in section l60(l)(d)(ii)."

The same Bench of the Allahabad High Court in J. P. Rcnvot v. K. D.Paliwal, (20 E.L.R. at 443), had held—at page 456 :

" even in the case of admitted workers in whose case also gene-ral consent to work for the candidate may be implied, the consentof the returned candidate to corrupt practice or practices complain-ed against have to be separately proved, and reliance upon gene-ral consent, express or implied, to work legitimately for the candi-date is not deemed sufficient."

After 14th January, 1971 the Prime Minister, like everyone else con-cerned, obviously believed that Shri Kapur was no longer a governmentservant. As I have already pointed out this was the legally correct assump-tion. Even if one were to assume, for the sake of argument, that this wasnot so and that the learned Judge had correctly held that Shri Kapur's re-signation became effective from January 25, 1971, there could be no liabi-lity for a corrupt practice by merely permitting Shri Kapur to resign Theuncontrcverted evidence •? that, after rcsigi:;i::g, Shri Kup-.ii" went to RueBareli voluntarily, without any request or suggestion made to him by theoriginal respondent or by anybody else to go to Rae Bareli and work forher election. Even his appointment as the original respondent's electionagent on February ], 1971, according to Shri Kapur's evidence, was iheresult of a suggestion of Shri Dal Bahadur Singh at Rae Bareli. apparentlyduring the Prime Minister's visit to her Constituency.

Cases in which help rendered voluntarily by a government servantwithout any attempt by the candidate concerned to "obtain." or "pro .jars"it were held not to constitute a "corrupt practice" of the candidate, what-ever be the impropriety of it for the government servant himself, were com-pletely overlooked by "the learned Judge. In Hafiz Mohd. Ibrahim v. Elec-tion Tribunal (13 F.L.R., p. 262), a Division Bench of Allahabad (Mootharo,C.J., and Mukerji, J.) had pointed out that a government servant has a"private personality" too. Similar observations of Dua, J. are found in aDivision Bench decision of the Punjab High Coi"t [See Ram Phal v. BrahmPrakash 23 E.L.R. 92 (1968).]

On the conclusions reached bv the learned Judge Iiim-elf. the rets ofShri Kapur between the period January 25, 1971 and February 6, 1971,the date of the publication of the notification, could not be taken into


account as no corrupt practice could possibly exist in that period, due tothe participation of Shri Kapur in any election work. And, with regardto the two earlier periods, beginning with January 7, 1971, I am unable tosee, for the reasons given above, how any corrupt practice could be com-mitted by the original respondent vicariously due to anything done by ShriKapur, even if one were to apply the law as it existed before the amend-ments of the Act.

Another question, which I may now briefly consider, is the date fromwhich the original respondent could be said to have held herself out asa candidate. If she was not a "candidate", upto January 25, 1971, asdefined by law, that would, in itself, be a sufficient ground for wiping outthe effect of findings of the learned Judge on the two periods dealt withabove.

The learned Judge had inferred that the Prime Minister was a "candi-date" from December 29, 1970 as she had held herself out as a candidatewhen she answered a question put to her on December 29, 1970 at a PressConference at New Delhi. The question and answer were as follows :

"Q.—A short while ago there was a meeting of the opposition leadersand there they said that the Prime Minister is changing her con-stituency from Rae Bareli to Gurgaon ?

P.M.—No, I am not."

In the witness box, the Prime Minister disclosed that what she meant bythe answer was that she would not contest from the Gurgaon constituency.On further cross-examination, she stated :

"It is wrong to assume that while giving the reply marked 'B' in thetranscript (Ext. 132) I conveyed that I was not changing my Con-stituency from Rae Bareli at all and emphatically held out thatI would contest election again from Rae Bareli. In my opinionthere is no basis for this assumption."

The learned Judge had, in preference to the statement of the PrimeMinister herself as to what she meant, together with the evidence given byher Secretariat that there were entreaties or offers to her from other consti-tuencies that she should be their representative, relied on Press reportsand what members of other parties thought and did as a result of theabove mentioned statement of the Prime Minister on December 29, 1970.The learned Judge also referred to paragraph 1(A) of the additional writtenstatement which runs as follows:

"That in fact, there were offers, from other Parliamentary constituen-cies in India, requesting this respondent to stand as a candidatefor the Lok Sabha from those constituencies and a final decision inregard to the constituency was announced by the All-IndiaCongress Committee only on January 29, 1971, and she only heldherself out as a candidate on filing her nomination at Rae Barelion 1st of February, 1971 (underlining is by me)."

He had also referred to the visits made by Congress (R> leaders to RaeBareli particularly, Shri Dinesh Singh and Shri Gulzarilal Nanda and byProf. Sher Singh. He had not accepted the explanation that they had gonethere of their own accord.

306 SMT. INDIRA NEHRU GANDHI V. SHRL RAJ NARAIN [VOL. LVii

The learned Judge had also considered several English authorities buthad noted that the law here was not the same as in, England. It had been'aid in Munnuswaml Gounder v. Khader Sheriff and others (4 E.L.R. 283at 292) where it was said:

"In this respect the law in this country makes a significant departureand that departure, in our opinion, again emphasises the applica-tion of vital democratic principle, in the light of differing condi-tions. We may here note, briefly, a feature cf the political prac-tice in the United Kingdom, which repeatedly colours and in-fluences the English cases, viz., the fact that there a person isoften adopted as a candidate by a political association, wi-houtany move on his behalf, until a particular stage when the adop-tion is formalised by his consent."

I am unable to see what bearing the activities of opposition leadersand statements issued by them or Press Reports, with regard to the candi-dature of the original respondent no. 1 from the Rae Bareli constituency,had upon either an interpretation of her own statement of December 29,1970, or the date on which she made a final decision to stand as a candi-date from the Rae Bareli constituency or the communication of that deci-sion by her to her constituency. The material relied upon by the learnedJudge consisted of speculation and hearsay coming from persons who werecertainly interested in finding out which constituency the Prime Minister,who had a choice of Gurgaon, a constituency much nearer to New Delhi,and, possibly of other constituencies as well if she only wanted to changeit. Absence of proof of a desire to change the constituency is not proofof a positive "holding out". It has been repeatedly laid down in decidedcases on the point that what is relevant is not what other people thinkor say about what a possible candidate would do, but what the candidateconcerned himself has said or done, so as to amount to "a holding out"as a candidate by the candidate from a particular constituency. Merespeculation or rumour circulated by other persons interested in findingout the Prime Minister's constituency could only prove what their ownexpectations or beliefs were. This type of "evidence", strictly speaking, couldnot even be admissible unless it could be related to something actuallysaid or done by the candidate. All that such "evidence" could prove wasthat people interested were speculating or indulging in guess-work. Itseems to me that the learned Judge did not take into consideration thetactics in the political game which, to some exent, every party participatingin such a game adopts. Some of these tactics are quite legitimate andhonourable, but others are not.

The learned Judge referred to the contents of a speech made by ;hePrime Minister at Coimbatore in South India, in the early part of January1971. castigating one of the tactics of the opposition parties in choosingShri Raj Narain to oppose her, for purposes of maximum "mud slinging".The learned Judge pointed out that the Prime Minister admitted, in herevidence, that she could have said this in her speech at Coimbatore. Shewas not asked whether this amounted to holding herself out as a candidatefrom Rae Bard? constituency. If such a question had been asked, there is1'ttle doubt that she could have explained the rtatoment by the context i iwhich it wa" made. ;ust ar she had given the precise .""sear;ing of he-?statement of December 29. 1970, in the context in which it was made.Apparently, the context of the statement made in early January in Coimba-tore was that the opposition parties had chosen a candidate, who, in theopinion of Prime Minister possessed certain capacity for "mud slinging"


which others did not have. The apparent object of what she mentionedin the speech was to expose practices of opposition parties in choosingsuch a candidate from a constituency from which they thought the PrimeMinister must be standing. It was obviously meant to disparage suchtactics and not to disclose her own intentions or future course of action.A healthy democratic practice or convention certainly is that the electionof rarae candidates, of certain stature and standing or position in publiclife, is not contested. To point out that the opposition parties, far frominiending to adopt such an atiuude towards her, were busy devising methodsof maligning her, could not reasonably be construed as a holding out ofherself as a candidate from a particular constituency unless one was pre-disposed to put such a construction on every ambiguous statement of thePrime Minister, made anywhere after the dissolution of Parliament inDecember 1970, untii the election in the first week of March, 1971. Simi-larly, the context of the question of December 20, 1970, put to the PrimeMinister at a conference at New Delhi, was that members of the oppositionparties thought that she may be contesting from Gurgaon. In the light ofthe opposition tactics, which the Prime Minister herself had referred to inher speech at Coimbatore, it wa:s not unlikely that the Prime Ministerwould have preferred to keep her own intentions about the constituency,from which she would ultimately stand, either a closely guarded secre'-,or, atleast, in a fluid state. In any case, it was not likely that she wouldannounce her own intention very clearly to stand from any particular cons-tituency until it was considered by her or by her political advisers to bepolitically expedient to do so. Again, it may be that the prospect of sucha leader standing from a particular constituency was likely to have apolitically exhilarating effect upon the workers or on party activities in thatconstituency. From such a point of view also, the Congress Party (R) ofthe Prime Minister may also have preferred that the Prime Minister shouldnot announce her decision until the last moment. A disputed question offact on such a matter could not possibly be determined by a Court onevidence of guess-work or speculations of others which are, strictly speak-ing, not relevant. I have indicated here that if some guess-work werepermissible, as it is to give its benefit to the person against whom circum-stantial evidence is to be used, other possible explanations and interpreta-tions were not excluded. The question had to be decided on proof of theactual statements and actions of the candidate herself which could amountto clear and unequivocal expressions of intention, showing a decision tostand from a particular constituency, meant primarily for the benefit ofthe voters of the particular constituency so chosen by a candidate. Whc-ewas that evidence here?

Tt seems to me that the learned Judge had given an exaggerated im-portance to what were either not strictly relevant or insignificant mattersin preference to what could be and was decisive and unequivocal. I do notthink that the answer of the Prime Minister at the Press Conference on29th December, 1970 or the contents of her speech in Coimbatore. in eav'vJanuary, 1971 or even a declaration or announcement of the All Ird<->Congress Committee on 29th January 1971, assuming that there was sue':an announcement, could mean that the Prime Minister had herself fir>al!;>decided to contest from the Rae Bareli constituency and had held herse'fout as a candidate for thir constituency. This holding our had to tak/dace by the Prime Minister herself ard not by the Congress Cnrmittee.Even if the fact of a declaration made by the Congress Committee on 29ibJanuary, 1971. which is all that the written statement admits, nroves thatthe Prime Minister was chosen by her party for this particular constituency

308 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL, LVII

on this date, her own decision on the matter could only come and wasproved by her to have actually come later than that. This admission was,in my opinion, misconstrued by the learned Judge as a contradiction. Inthe absence of any evidence whatsoever which could conflict with thePrime Minister's statement about the actual date of her finaldecision to stand from this constituency, it seems to me that thelearned Judge had no option reasonably open to him exceptto accept the correctness of the only and the best evidence on this questionavailable in the case. The learned Judge in observing, quite unnecessarilythat his finding on this question was not going to be affected by theimportance of the office held by the Prime Minister, seems, subconsciously,to have been so affected by it that he did not act on the normal rule that*the best evidence of a person's state of mind is his or her own statementsand actions and not of others. He seems to have felt that judicial inde-pendence consists in inverting this rule and judging the matter primarilyfrom the evidence of the states of mind and opinions and actions of otherindividuals in the case of a Prime Minister of this country. 'I do not con-sider this to be judicially correct approach.

The fact that the tour programmes were circulated in advance for theRae Bareli District, in which the Prime Minis er made electioneeringspeeches, could also not determine what the final declaration of intentionby the Prime Minister was going to be in regard to the Rae Bareii cons-tituency. It is not enough that the candidate should h&ve by then formedan intention to stand from a particular constituency. There is a gapbetween intent and action which has to be filled by proof of either state-ments or of conduct which amount to unequivocal declarations made tovoters in the constituency in order to amount to a "holding out" to them.This seems to me to be the clear position in the law as laid down by Courtsin this country on the meaning of section 79 (b) of the Act.

It is significant that the despite the large number of speeches and state-ments the Prime Minister must have made throughout the country, in thisperiod, not a single statement made by her could even be cited in whichshe had said before 1st February, 1971, that she was standing as a candi-date from the Rae Bareli Constituency. It is possible, as I have indicatedabove, that this may be a part of the political game or permissible partlytactics so as to keep opposition parties guessing. It seems to me that thelearned Judge was overlooking the context, the probabilities, the naturalcourse of events in such a case, the legal and logical relevance and effectof what he thought was decisive, and, finally, the importance of the state-ment of the Prime Minister herself on this question, supported by completeabsence of any evidence to show that she had herself made any clear anddecisive statement in any speech or conversation which could shake herstand, that her final decision and unequivocal act was the filling of anomination paper as a candidate on 1st February, 1971 at Rae Bareli. Imay mention here that, according to the findings of the learned Judgehimself, the question of the Prime Minister holding herself out as acandidate for the Rae Bareli Constituency became quite immaterial after25th January, 1971 and, on the findings I have reached above, the wholequestion becomes unimportant. However, I will indicate some authoritieswhich the learned Judge himself had noticed.

In S. Khader Sheriff v. Munnuswami Gounder and others [1955 (2)S. C. R. 469] this Court said at page 473.


"When, therefore, a question arises under section 79(6) whether a per-son had become a candidate at a given point of time, what hasto be seen is whether at that time he had clearly and unambigu-ously declared his intention to stand as a candidate, so that itcould be said of him that he held himself out as a prospectivecandidate. That he has merely formed an intention to stand forelection is not sufficient to make him a prospective candidate, be-cause it is of the essence of the matter that he should hold him-self out as a prospective candidate".

In J. P. Raw at v. Krishna Dutt Paliwal (20 E. L. R. 443 at 463) aDivision Bench of the Allahabad High Court (V. Bhargava and J. N. Takru,JJ.), following the decision of this Court in S. Khader Sheriff's case (supra)said at p. 463 :

"The determining factor, therefore, is the decision of the candidatehimself, not the act of other persons or bodies adopting him astheir candidate".

In Haji Abdul V/ahid v. B. V. Keskar and Another (21 E. L. R. 409),it was held by a Division Bench of the Allahabad High Court (R. N. Gurtuand S. N. Dwivedi, JJ.) :

"(i) that the purchase of the nomination forms and voters' lists, couldnot amount to holding out as a candidate ; (ii) the arranging of pub-lic meetings by the officials and the respondent's moving about inthe constituency on the 15th and 16th could not by themselvesamount to a holding out by the respondent as a prospective candi-date on those days" in t\e absence of evidence to show that therespondent had utilised those meetings and tours for the purposeof making utterances of an electioneering character".

In K. K. Mishra v. Banamali Babu (38 E. L. R. 451 at 475) the OrissaHigh Court, relying upon the following observations of this Court in S.Khader Sheriff's case (supra), held that a holding out within the meaningof section 79(6) must be by declaration of the candidate to an elector orto the electorate in a particular constituency and not to others:

"It may be that the holding out which is contemplated by that sectionis to the constituency f but if it is the Central Committee that hasto decide who shall be adopted for election from the concernedconstituency, any declaration made to the Committee is, in effect,addressed to the constituency through its accredited representative."

The view of the learned Judge appears to me to run counter to theweight of authorities cited above. In any case, if there was any uncertaintyat.all, in the law, it has been removed by an amendment by section 7 ofAct No. 40 of 1975 so that section 79(6) reads as follows :

"Candidate means a person who has been or claims to have been dulynominated as a candidate at any election" ;

Learned counsel for the election petitioner cortended that this amend-ment, read with section 10 of the Act 40 of 1975 woi-ld retrospectively alterthe "rules of the game" and would be destructive of the concept of freeand fair elections, if it means that a person is only a candidate after he hasbeen duly nominated and that he can indulge in any amount of corruptpractices until the day previous to his nomination.

21—345 Elec. Com./ND/81

3 1 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. I. VII

Even if the present definition is a new one, it cannot be said to bearbitrary. The concept contained in it is found in the English definitionwhich lays down.

{See Halsbury's Laws of England. 3rd Edn., Vol. 14, p. 162) :

" a candidate in relation to a parliamentary election means aperson who is elected to serve in Parliament at the election or aperson who is nominated as a candidate at the election, or is de-clared by himself or by others to be a candidate on or after theday of the issue of the writ for the election "

The English definition is wider but contains, as it first part, the veryconcept found in our new definition of a "candidate".

Corrupt practices of a candidate cannot go unpunished, whether theyare committed before or after he becomes a candidate, when they amountto acts which come within the purview of electrol offences dealt with byChapter 3, section 125, 126, 127, 127 (A) or Chapter 9A of the IndianPenal Code. Offences such as bribery, for purposes of either inducing per-sons to vote or not to vote or to stand or not to stand as candidates, undueinfluence, and personation, are all dealt with here. These should be suffi-cient deterrents against perversion of the electoral process by a prospec-tive candidate, who wants to adopt corrupt and objectionable means forgaining success at the polls.

The amendment appears to me to be within the unquestionable powersof Parliament to legislate, either prospectively or retrospectively, with regardrto election matters. I am unable to see how it is capable of being inter-preted as an attack on free and fair elections, which, according to thelearned Council for the election petitioner, is part of the basic structure ofthe Constitution. I think it is important to bear in mind that Courts can-not take upon themselves the task of laying down what electoral laws shouldbe. The law makers, assembled in Parliament, are presumed to know andunderstand their business of making laws for the welfare and well beingof the mass people of this country, for the protection of democracy and offree and fair elections, in accordance with the needs of the democratic pro-cess, better than Courts know and understand these. It is only where apiece of legislation clearly infrigenes a constitutional provision qr indubi-tably over-rides a constitutional purpose or mandate or prohibition thatCourts can interfere. After having listened to the lengthy and vehementarguments of the election petitioner, I fail to see any invalidity in thisprovision.

I will now take up issue No. 3 of the 1st set of issue on which, afterrejecting the contention that the erection of barricades and the provisionof the police force for security purposes by the Government of U. P. dur-ing the election tours of the Prime Minister on 1st and 25th February, 19/1in the Rae Bareli Constituency, contravened section 123(7), the learnedJudge held that, nevertheless, the arrangements made by the DistrictMagistrate of Rae Bareli, the Superintendent of Police, Rae Bareli, theExecutive Engineer, P. W. D. and the Engineer, Hydel Department, forconstructing rostrums and the supply of power for loud-speakers, on theinstructions" given by the State Government, was a corrupt practice struckby the provisions of section 123(7) of the Act. As have already indicated,the only evidence relied upon by the learned Judge for this extraordinaryfinding, after having rejected a similar allegation of a corrupt practice underissue no. 2S on account of provision of the Air Force planes and helicopters

B.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 311

flown by members of the Air Force, on necessary official instructions, toenable the Prime Minister to go to places where she could address electionmeetings on 1st and 25th February 1971, was that the visits of the PrimeMinister to her constituency on these occasions were preceded by the issuefrom the Prime Minister's Office of the tour programmes to the officialsof the District through the State Government with the knowledge and con-sent of the Prime Minister. The State Government had acted in compli-ance with the instructions issued by the Comptroller and Auditor Generalof India in 1958, read with Rule 71(6) of what is known as the Blue Book.The relevant part of this rule reads as follows :

"It has been noticed that the rostrum arrangements are not alwaysproperly made because the hosts are sometimes unable to bearthe cost. As the security of the Prime Minister is the concernof the State, all arrangements for putting up to the rostrum, thebarricades etc. at the meeting place, including that of an electionmeeting, will have to be made by the State Government concerned."

The Government of India had also issued a letter (Ex. A. 21), dated19th November, 1969 inviting the attention of the State Governments toRule 71(6), mentioned above, and directing them to ensure that, wheneverrostrums are constructed on such occasions, they should conform to certainspecifications laid down with due regard to security considerations. Theletter also directed the State Governments to bill the political party con-cerned with expenses up to 25 per cent of the cost of the rostrums or Rs. >25,000, whichever is less. The letter also directed that extravagence in ex-penditure should be avoided. It was proved by the evidence of Shri R. K.Kaul (P. W. 58) the Home Secretary in the Government of U. P., that ros-trums and arrangements for barricading are made by the local officialsemploying contractors for the purpose, under instructions issued by theState Government. The reasoning adopted By the Learned Judge, however,was that, as the Prime Minister's office had issued her tour programmes,with the approval of the Prime Minister, the result must be, in the languageof the learned Judge himself :

" the tour programmes carried an implied direction that the StateGovernment should also got constructed rostrums and arrange forpublic address system for the election meetings to be addressedby her on 1st of February, 1.971 and 25th of February, 1971. Itshould be presumed that the respondent no. 1, as Prime Minister,of this country, and with five years experience of that office behindher in 1971, also knew that the said work was to be done by theofficers of the State Government."

This meant that the learned Judge was holding the Prime Minister her-self responsible for instructing the State Government knowing Lhat it willmake the necessary arrangements through its servants . The case thus ac-cepted, that the Prime Minister was employing the State Government as heragency in procuring the aid of the officers concerned, was neither set upnor put in issue. Apart from this objection, the learned Judge overlookedthat the provisions of Section 123(7) were intended to prevent solicitationfor aid and not sending of information to the State Government in thecourse of ordinary official business even if the candidate concerned knowsthat the State Government is bound, under the rules, to make the neces-sary arrangements dictated by the needs of security of the Prime Ministerand convenience of the public.

The view of the learned Judge involves holding that the "persona" (aterm derived from the concept of the mark worn by Greek actors on the


stage in a drama) of a candidate during an election must not only be dif-ferent from that of the Prime Minister, but also that, when the two capa-cities are held by the same person, what is due to the occupant of the officeof the Prime Minister must be withdrawn when the same person acts as acandidate. On a similar argument, with regard to use of helicopters andaeroplanes, the learned Judge himself had refused to acknowledge whatamounts to a separable legal personality of a candidate in the eyes of law.The ground given for this difference between the use of aeroplanes andhelicopters by the Prime Minister and the use of rostrums by her was thatthe former was more connected with the office or capacity of the PrimeMinister and that the latter was exclusively meant for her use in the capacityof a candidate. Even if we were to recognise this distinction between the"persona" of the Prime Minister and that of a candidate, it is impossibleto separate the special arrangements; made for the security of the person ofthe Prime Minister from those to which she may be entitled as a candidateonly. It is impossible to deny at any time the facilities and precautionsmeant for the person who holds the office of the Prime Minister to theperson just because she also figures as a candidate at an election. So longas the person is the same what is meant for the person must be attributedto the persona or capacity of the Prime Minister and not to that of a can-didate only. The learned Judge, however, thought that a candidate, whohappens to hold the office of the Prime Minister of the country, is not enti-tled to the facilities or precautionary measures taken to protect the personof the holder of the office when electioneering as though the Prime Ministerand the candidate were two different persons. He was unable to see that,so long as the person was the same, the distinction between the two capa-cities or personae, for the purposes for which facilities were given and pro-tection provided was both factually as well as legally impossible and quiteimmaterial.

I also think that the learned Judge erred in holding that such a casecould be one of solicitation of official aid and assistance at all. It is a casein which certain precautions are taken and arrangements made almost"automatically", if one may use this word here, by officers of the State asa matter of duty towards the office held by a candidate who undoubtedlyenjoys certain advantages which an ordinary candidate cannot have. Itis as futile to complain of such a distinction made as it is to complain thata candidate possesses certain advantages at an election because of the per-sonal services rendered to the country or distinctions achieved by the can-didate. Again, there are advantages which attach themselves to a candi-date because of that candidate's personal qualities, qualifications, capacitiesor background- The appurtenances of office or distinctions achieved are,in my opinion, comparable to such personal advantages in so far as theyare not enjoyed because they are "obtained" or "procured". If such aresult in law is unfair, it is not for Courts to find a remedy by acceptingthe argument advanced before us also : that those who enjoy the benefitsof office must be made to realize and suffer some of its handicaps. Thisclearly means that the benefit which law gives, without solicitation by thecandidate must be converted, by a judicial fiat, into a disadvantage anda handicap. It is for Parliament to step in and change the law if an altera-tion of it is considered necessary by it. The only change that need bemade in the law, if that could be the legislative intent, is to provide thatthe holder of any office for the time being would not be qualified to standat an election. In that event, holders of all Ministerial offices will have toresign before they offer themselves as candidates. But, such is not ourlaw found in the 1951 Act or anywhere else. I think that it would be


extending the scope of Sec. 123(7) too wide to hold that the facilities auto-matically provided by the State to the Prime Minister, by virtue of his orher office, are also struck by a provision directed against solicitation ofofficial a-d and assistance by candidates.

The learned Judge had mentioned a Division Bench decision of theAllahabad High Court in Motllal versus Mangla Prasad, AIR 1958 All.794 at 797 where it was laid down :

"We thiiik that the word 'obtain' in section 123(7) has been used mthe essence of the meaning which connotes purpose behind theaction of the candidate. The word has not been used in theSLih-psction in the sense of a mere passive receipt of assistancewithout the candidate even being conscious of the fact that theassistance has been rendered. In order to bring the case undersub-section (7), it must be shown that the candidate did makesome effort or perform some purposeful act in order to get theassistance."

He had also cited another Division Bench decision of the AllahabadHigh Court in Biresh Mishra versus Ram Nath Sharma and Ors., 7 R.L.R.1243 at 253 that:

"The words 'obtain' or 'procure' or 'abetting or attempting to obtainor procure' any assistance necessary imply some effort on the partof candidate or his agent. Mere passive receipt of assistance isnot contemplated by the Section."

I think that the import of such observations was clearly what hasbeen laid down repeatedly by this Court and emphasized by me already...that a mens rea as well as an act us reus must be shown, on the evidenceon record, before a candidate can be held guilty of a corrupt practice. InSheopat Singh versus Ram Pralap, (1965) 1 S.C.R. 175(1) this Court held,in dealing with the allegation of corrupt practice under Section 123(4) ofthe Act, that mens rea was a necessary ingredient of the corrupt practiceand that the doctrine of constructive knowledge was not applicable here.

In the case before us, the election petitioner alleged a wrongfully "ob-ta'ned and procured" assistance due to acts of the original respondent aswell as her election agent Shri Yashpal Kapur. Hence, proof of actualmens rea as well as act us reus on the part of either the candidate herselfor her election agent had to be given. This was not done. The election-petitioner was, therefore, liable to be rejected on this ground alone.

If, however, there was any doubt or uncertainty on the matter, theview taken by the learned Judge had, at any rate, directed the attentioniof Parliament to the need for a clarification of the law which becamenecessary. It is not possible to object to the motives behind the legisla-tion of this ground. Parliament could certainly set right a defect in lawwhich may have come to its notice as a result of the learned Judge's inter-pretation of 'Sec. 123(7). The defect may be due to a possible ambiguity.In order to clarify the law. Sec. 7 of the Act 40 of 1975 inserted a provisoat the end of Sec. 123(7), which runs as follows:

"Provided that where any person, in the service of the Governmentand belonging to any of the classes aforesaid, in the dischargeor purported discharge of his official duty, makes any arrange-

ments or provides any facilities or does any other act or thing,


for, to, or in relation to, any candidate or his agent or any otherperson acting with the consent of the candidate or his electionagent, (whether by reason of the office held by the candidate orfor any other reason), such arrangements, facilities or act or thingshall not be deemed to be assistance for the furtherance of theprospects of that candidate's election."

The learned Counsel for the election-petitioner has, very fairly, con-ceded that, if this amendment, which is retrospective by reason of theoperation of Sec. 10 of Act 40 of 1975, is valid, the decision of the learn-ed Judge on the abovementioned issue no. 3 would not be sustainable. Sucha concession, incidentally, means that whatever facilities were given to thePrime Minister by the construction of rostrums or provision of power forthe loud-speakers, for which the party was also billed, atleast to the extentof l'/4th of the expenses of the rostrums, and wholly as regards the ex-penses of loud-speakers, were given by the officers concerned in the per-formance of their official duties. This is not the same thing as "obtaining"or "procuring" by solicitation.

The Learned Counsel for the election-petitioner has, however, put for-ward the same objection to this retrospective amendment as the one againsta change in the definition of "candidate." It appears to me thatthis amendment is merely clarificatory of the state of law as it really waseven before the amendment. On the view I take, there is no question hereofaltering the "rules of the game" to the disadvantage of the election-peti-tioner. The disadvantage, if any, was there already because of the conse-quences, which, I think, legally and naturally flow from the occupation ofthe high office of the Prime Minister of this country.

There is no attack on the validity of Sec. 123(7) of the Act as it exist-ed before the amendment. Hence, there could be no challenge to the vali-dity of the amendment if it does not, as I think it does not change the lawbut merely clarifies it.

Learned Counsel for the election-petitioner contended that, as a can-didate at an election, the Prime Minister and an ordinary candidate shouldenjoy equal protection of the laws and should be afforded equal facilitiesirrespective of the office occupied by one of two or more candidates. Suchan attack upon the validity of this amendment seems to me to be possibleonly under the provisions of Art. 14 of the Constitution. But, as Act 40of 1975, has been placed by Sec. 5 of the 39th Amendment in the protect-ed 9th Schedule of the Constitution, it becomes immune from such anattack. After the practically unanimous opinion of this Court in 'Kesva-nanda Bhartis case (Supra) that such an immunisation of an enactmentfrom an attack based upon an alleged violation of the chapter on funda-mental rights is constitutionally valid, I do not think that a similar attackcan be brought in through the back door of a "basic structure" of theConstitution. Moreover, I am unable to see how this particular amend-ment has anything to do with damage to any part of the "basic structure"of the Constitution. Even if an attack on the ground of a violation of Art.14 were open today, I think that the occupation of such a high and im-portant office as that of the Prime Minister of this country, with all itsgreat hazards and trials, would provide a rational basis for reasonableclassification in respect of advantages possessed by a Prime Minister as acandidate at an election due to arrangements made necessary by conside-rations of safety and protection of the life person of the Prime Minister.Hence I am unable to see any sustainable ground of attack at all on thevalidity of this provision.


Before I proceed further, I may mention that I have dealt with thefindings of the learned Judge, assailed by the original respondents appealno. 887 of 1975, perhaps in greater length and depth, after going throughthe evidence in the case, than I had set out to do. I have done so farseveral reasons. Firstly, I think that the nature of the attack upon the bonafides of the amendments made, although ordinarily not even entertainable,having been permitted due to the constitutional importance and gravity ofthe allegations made, this question could not, in my opinion, be satisfacto-rily dealt with without considering the nature of the findings and the evi-dence at some length so as to satisfy myself that no such question couldpossibly arise here, secondly, if the amendments were made necessary forreasons brought out fully only by dealing with facts and findings in thiscase, they could not give rise to any grounds to suggest that there was any-thing wrong in making amendments to remove such reasons. Therefore, Ithink, it was necessary to go into these for determining whether the am-endments are good. Thirdly, even if the amendments are valid, we had tobe satisfied that the tests of corrupt practices alleged are not fulfilled des-pite the concession of the election-petitioner's learned counsel that thiswould be the position. Fourthly, I find that the learned Judge has madecertain manifest errors in appraising the evidence and interpreting the lawwhich call for rectification by this Court as no other authority can properlydo this.

It appears to me, as already indicated by me that the learned Judgewas perhaps unduly conscious of the fact that he was dealing with the caseof the Prime Minister of this country. He therefore, as he indicated inthis judgment, seemed anxious not to allow this fact to affect his judgment.Nevertheless, when it came to appraising evidence, it seems to me that, asI have already pointed out, he applied unequal standards in assessing itsworth so as to largely relieve the election-petitioner of the very heavy onusof proof that lies on a party which challenges the verdic of the electors byallegations of corrupt practices. He also, appeared to be attempting toachieve, by means of judicial interpretation, an equalisation of conditionsunder which in his opinion, candidates should contest elections. I thinkthat it is not the function of Courts to embark on attempts to achieve whatis only in the power of Parliament to accomplish, that is to say, to bringabout equality of conditions where the law permits justifiable discrimina-tion. As this Court has repeatedly pointed out, to treat unequally situatedand circumstance persons as though they were equals in the! eyes of lawfor all purposes is not really to satisfy the requirements of the equality'contemplated by the Constitution.

As regards appraisal of evidence in such a case, I may point out that,in Rahim Khan v. Khurshid Ahmad [1974 (2) S.C.C. 660,666,672] KrishnaIyer, J. speaking for this Court, said:

"An election once held is not to be treated in a light-hearted mannerand defeated candidates or disgruntled electors should not getaway with it by filing election petitions on unsubstantial groundsand irresponsible evidence, thereby introducing a serious elementof uncertainty in the verdict already rendered by the electorate.An election is a politically sacred, public act, not of one personor of one official, but of the collective will of the whole consti-tuency. Courts naturally must respect this public expression se-cretly written and show extreme reluctance to set aside or declarevoid an election which has already been held unless clear and

316 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVH

cogent testimony compelling the Court to uphold the corrupt prac-tice alleged against the returned candidate is adduced. Indeed,election petitions where corrupt practices are imputed must beregarded as proceedings of a quasi-criminal nature wherein strictproof is necessary. The burden is therefore, heavy on him whoassails an election which has been concluded."

This Court also said there (at p. 672):

"We regard it as extremely unsafe, in the present climate of kiikenny-cat election competitions and partisan witnesses wearing robes ofveracity, to upturn a hard won electoral victory merely becauselip service to a corrupt practice has been rendered by some sanc-timonious witnesses. The Court must look for serious assurance,unlying circumstances or unimpeachable documents to upholdgrave charges of corrupt practices which might not merely cancelthe election result, but extinguish many a man's public life."

I will now take up the election petitioner's cross appeal no. 909/75.Learned Counsel for the election petitioner, very properly and frankly,conceded that he could not successfully assail the findings of the learnedJudge on Issues nos. 4 and 7 relating to alleged distribution of quilts, blan-kets, dhotis and liquor by workers of the original respondent or the alleg-ed prevision of free conveyance by vehicles said to have been hired byShri Kapur. The evidence on these questions given by the election peti-tioner was too flimsy and extravagant and was met by overwhelming evi-dence to the contrary given by respectable residents of localities in whichthe alleged corrupt pract:ces are said to have taken place. No driver ofany conveyance was produced. Nor was any person produced who hadactually received any alleged gift or had consumed anything provided onbehalf of the successful candidate.

As regards issue no. 2, relating to the use of aeroplanes and helicop-ters by the original respondent, which was not separately pressed evi-dently because it was covered by the amendment which was assailed bythe election petitioner, the reasons I have given on issue no. 3 for upholdingthe validity of the amendment relating to the services rendered by Govern-ment officials and members of defence forces in due discharge of their dutiesare enough to cover the points raised.

As regards issue no. 6, relating to the adoption of the drawing of acow and a calf as the symbol of the Congress (R) Party of the original res-pondent, the finding of the Trial Court, based on a large number of autho-rities, was that this is not a religious symbol. This question was directlydecided in: Bhartendra Singh v. Ram Sahai Pandey and others: (AIR.1972 M.P. 176, p. 179); Shital Prasad Misra v. Nltiraj Singh Chaudhary(M.P. Gazette, Dated 23-6-1971, Part I. p. 809, paras 18 to 23) ; decidedby M. P. High Court on July 21, 1971; and Sri Prasanna Das DamodarDas Pawar v. Indu Lai Kanhaiya Lai Yajnik (Gujarat Gazette, dated20-7-1972. Part 4c, p. 1042 at pp. 1355 to 1362 decided on August 27,1971 by the High Court of Gujarat. The learned Judge also cited thefollowing cases where it was decided that a cow is not a religious symbol:

Shah Jayanti Lai Amba Lai v. Kasturi Lai Nagin Das Doshi (36 ELR189); Baijnath Singh Vaidya v. R. P. Singh (36 ELR 327);Bishambhar Dayal v. Raj Rajeshwar and others (39 ELR 363 atp. 376); Dinesh Dang v. Daulat Ram (39 ELR 465 at p. 476);Shyamlal v. Mausa Din and others (37 ELR 67 at p. 89), B, P.

-E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 317

Maurya v. Prakashvir Shastri (37 ELR 137 at p. 147); SohadarRai v. Ram Singh Aharwar and others (37 ELR 176 at p. 188);Vishwanath Pd. v. Salamat Ullah and others (27 ELR 145 atp. 186) and Lac he hi Ram v, / . P. Mukariya and others (9 ELR149 at p. 157).

In addition, section 8 of the Act 40 of 1975 has mad; the positionon this point also very clear by providing that, in section 123 of the Act inclause (3), the following proviso shall be inserted at the end:

"Provided that no symbol allotted under this Act to a candidate shallbe deemed to be a religious symbol or a national symbol for thepurposes of this clause."

As ia the case of other amendments, this amendment was also chal-lenged on behalf of the election petitioner on the ground that it could bemisused. I am afraid that attacks made on such sweeping suggestions oflikelihood of misuse, in future, cannot possibly succeed. It has beenrepeatedly laid down by this Court that the possibility of misuse of apower given by a statute cannot invalidate the provision conferring thepower. See Dr. B. N. Khare v. State of Delhi [(1952) SCR 519 at p. 562];State of W. B. v. A. A. Sarkar [(1952) SCR 283 at p. 301]; R. K. Dalmiav. Justice Tendolkar [(1959) SCR 279 at p. 3061; T. K. Mudaliar v. Venkata-chalam [(1955) 2 SCR 1196 at p. 1239]; Chitralekha v. State of Mysore[(1964) 6 SCR 368 at p. 382-3831; M. R. Deka v. N. E. F. Rlv. [(1964)683]. The occasion to comnlain can only arise when there is such allegedmisuse. Even the possibility of such misuse of this power by so respon-sible an official as the Election Commissioner cannot be easily conceived of-

It was submitted that the Election Comm:ss'oner's decision on thisquestion was unreasonable- The best class of evidence as to what is andwhat is not to be reasonably regarded as a religious symbol,according to the customs, mores, traditions, and outlook of the people ofcountry at a certain time consists of contemporaneous decisions of Courts.It is useless to quote passages from ancient texts about the sacredness ofthe cow in support of the use of the cow as a religious symbol today. Theuse of pictures of this excellent and useful animal is so frequently madetoday for commercial purposes or purposes other than religious that therepresentation of a cow and a calf cannot, except in some special andpurely religious contexts, be held to have a religious significance. I, there-fore, see no force at all in this submission of the election petitioner.

The only question argued with some seriousness in the election peti-tioner's appeal was that the election expenses, which form the subject matterof issue no. 9, had exceeded the limit of authorised expenditure imposed bys. 77 of the Act read with rule 90. On this issue, the learned Judge hadconsidered every allegedly omitted item of expense very thoroughly andhad reached the conclusion that the following 3 items, totalling up toRs. 18,183.50, had to be added to the return of election expenses of theoriginal respondent which mentioned items totalling up to Rs. 12,892.97.These were (1) Cost of rostrums Rs. 16,000; (2) Cost of installation ofloudspeakers Rs. 1,951; (3) Cost of providing transport for one journey;by car Rs. 232.50.

On this issue, the learned Judge's appreciation of evidence was notonly very thorough and correct, but the application of the governing lawon the subject also appears to me to be faultless. Ordinarily, we do not,

3 1 8 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII'

sitting even in first appeals on questions of law as well as of fact in elec-tion cases, go into findings of fact arrived at without misapplication of lawor errors of approach to evidence. In the case before us, two main ques-tions and one subsidiary question, each of which is a mixed question offact and law, which deserve consideration by this Court on this issue, havebeen raised before us. I will deal with these questions briefly seriatim.

The first question is: If the party, which a candidate represents,.spends or others also spend some money on his or her election, is this ex-penditure one which can be or should properly included in the statementof election expenses submitted by the candidate ? Arguments before ushave proceeded on the assumption made by both sides that some expendi-ture was incurred by the Congress (R) Party and some expenditure mustalso (have been incurred by those who either voluntarily helped or eventhrust their supposed assistance, whether it was helpful or not, upon thosemanaging the original respondent's election, which was not shewn as partof her election expenses. Is the successful candidate bound, under the law,,to show this also as part of election expenses?

This question assumed special importance after the decision of this-Court in Kanwarlal Gupta v. Amarnath Chawala, (AIR 1975 S.C. 308 atp. 315-316), where a Division Bench of this Court observed :

"Now. if a candidate were to be subject to the limitation of the ceil-ing, but the political party sponsoring him or his friends and sup-porters were to be free to spend as much as they like in connec-tion with his election, the object of imposing the ceiling wouldbe completely frustrated and the beneficient provision enacted inthe interest of purity and genuineness of the democratic processwould be wholly emasculated. The mischief sought to bs reme-died and the evil sought to be suppressed would enter the politicalarena with redoubled force and vitiate the political life of thecountry. The great democratic ideal of social, economic andpolitical justice and equality of status and opportunity enshrinedin the preamble of our Constitution would remain merely a dis-tant dream eluding our grasp. The' legislators could never have-intended that what the individual candidate cannot do, the poli-tical party sponsoring him or his friends and supporters should befree to do. That is why the legislators wisely interdicted not onlythe incurring but also the authorising of excessive expenditure bya candidate. When the political party sponsoring a candidate in-curs expenditure in connection with his election, as distinguishedfrom expenditure on general party propaganda, and the candidateknowingly takes advantage of it or participates in the programme oractivity or fails to disavow the expenditure or consents to it oracquiesces in it, it would be reasonable to infer, save in special cir-cumstances, that he impliedly authorised the political party toincur such expenditure and he cannot escape the rigour of theceiling by saying that he has not incurred the expenditure, buthis political party has done so. A party candidate does not standapart from his political party and if the political party does notwant the candidate to incur the disqualification, it must exercise,control over the expenditure which may be incurred by it directlyto promote the poll prospects of the candidate. The same pro-position must also hold good in case of expenditure incurred byfriends and supporters directly in connection with the election ofthe candidate."

E .L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 3 1 9

After making the above mentioned observations, the apparently broadsweep of the observations was limited as follows :

"It may be contended that this would considerably inhibit the electo-ral campaign of political parties but we do not think so. In thefirst place, a political party is free to incur any expenditure itlikes \on its general party propaganda though, of course, in thiaarea also some limitative ceiling is eminently desirable coupledwith filing of return of expenses and an independent machineryto investigate and take action. It is only where expenditure isincurred which can be identified with the election of a given can-didate that it would be liable to be added to the expenditure ofthat candidate as being impliedly authorised by him. Secondly,if there is continuous community involvement in political admini-stration punctuated by activated phases of well-discussed choiceof candidates by popular participation in the process of nomina-tion, much of unnecessary expenditure which is incurred todaycould be avoided."

It is not necessary to quote further from the judgment which suggeststaking of steps for reform of electoral machinery so as to ensure "choiceof candidates by popular participation in the process of nomination", be-cause that would take us into a territory beyond mere interpretation of thelaw as it exists. It is clear from the passages cited and later parts of thejudgment that the earlier decisions of this Court, requiring proof of autho-risation by the candidate of the election expenditure for which he couldbe held responsible, and, in particular, Rananjaya Singh v. Vaijnath Singh,[1955(1) SCR 6711, which I shall refer to again a little later, are consider-ed. It is enough to observe that the passages quoted above rest on theiassumption that, where there are special circumstances in a case whichconstitute a political party an implied agent of the candidate himself, thecandidate will .be responsible. It was also suggested there that a politicalparty itself must exercise some control over the expenses of the candidateit sets up. The objection was to a candidate merely using the politicalparty as a channel or cover for expenses incurred by the candidate himself.This explains the exclusion of expenses for "general party propaganda"from those for which the candidate is accountable and liable. Such ex-penses could be, it was held, properly incurred by the party itself, irres-pective of the source from which the party obtained funds for carrying iton. What is declared to be expense incurred by the candidate is that ex-pense which his party may incur either as an express or implied agent ofthe candidate and that only.

The difficulty which faces the election petitioner at the outset in tak-ing up a case of implied authorisation, on the strength of anything observ-ed or decided by this Court in Kanwarlal Gupta's case (supra) is that no-such case was set up here. The petition does not say that the local Con-gress (R) Party was really an express or implied agent of the original res-Doadsnt or thar it had acted in a manner from which it could be inferredthat the funds were really being supplied by the original respondent andwere merely being spent by the party or its workers for the election underconsideration. No facts or circumstances were at all indicated either in thepetition or in evidence from which such inferences were possible. Onthe other hand, what is sought to be pointed out now in the case beforeus is that a sum of Rs. 70,000 was shown to have been received from someundisclosed sources by Shri Dal Bahadur Singh, fhe President of the Dis-trict Congress Committee at Rae Bareli, and that a large part of it was


shown, from entries in the bank account of the President of this Committee,to have been disbursed during or soon after the election. The responsi-bilily of the District Congress Committee was, however, to carry on pro-paganda and supply information in 3 Parliamentary constituencies. Neitherparly summoned Shri Dal Bahadur Singh to give evidence so that it couldcot "be proved what proportion of any of this sum of Rs. 70,000 was spentand in what work and for whl;h of the 3 Parliamentary constituencies. Allthat was alleged, in paragraph 13 of the petition, is that th; ""expenditureincurred by the respondent no. 1, Srimati Indira Nehru Gandhi and/or herelection agent Shri Yashpai. Kapur was much more than Rs. 35,000 whichwas the permissible amount". After that, particulars of 11 items weregiven out of which the first was hiring of 32 vehicles whose numbers arementioned. There is no mention whatsoever in this list of any sum raideither by the original respondent or by anyone else on her behalf to ShriDal Bahadur Singh or of any expense incurred on behalf of the originalrespondent by this gentleman. The principle that no amount of evidencecan be looked into on a case not set up is sufficient to dispose of this evi-dence of a cheque of Rs. 70,000 received by Shri Dal Bahadur Singh.

It is true that the case set up is that the prescribed limit of expenditurewas exceeded and the case is so stated that items beyond the list couldconceivably be added. Nevertheless, unless and until there is a plea thatsomething was spent by the Congress (R) Party, either as an express orimplied agent of the original respondent, this loophole left in the petitionwould not suffice. Section 83(l)(fc) of the Act contains the mandatory pro-visions that the petition "shall set forth full particulars of any corrupt prac-tice that the petitioner alleges, including as full a statement as possible ofthe names of the parties alleged to have committed such corrupt practiceand the date and place of the commission, of each such practice".

The judgment of this Court, in Kanwarlal Gupta's case (supra) discus-ses a number of cases decided by this Court which show that it is notenough to prove expenditure of money by a candidate's party or friends orrelations. It must be also proved that this was expenditure authorised bythe candidate and incurred as the candidates express or implied agent.These cases were :

Rananjaya Singh v. Baijnath Singh [(1955), 1 SCR 671] ; Ram Dayalv. Brijraj Singh [(1970), 1 SCR 530] ; Magraj Patodia v. R. K. Birla[(1971) 2 SCR 118] and B. Rajagapala Rao v. N. G. Ranga (A.I.R.1971 SC 267).

After examining, this catena of cases I think with great respect, thatthe decision of this Court in Kanwarlal Gupta's case (supra) could beunderstood to point in a direction contrary to that in which the previouscases were decided. Hence, it appears to me that the amendment madeby Act 58 of 1974, by adding the explanation (1) to section 77(1) of theAct, could be justified as merely an attempt to restore the law as it hadbeen understood to be previous to decision of this Court in KanwarlalGupta's case (Supra).

"Explanation 1—Notwithstanding any judgment, order or decision ofany court to the contrary, any exependiture incurred or autho-rised in connection with the election of a candidate by a politicalparty or by any other association or body of persons or by anyindividual (other than the candidate or his election agent) shallnot be deemed to be, and shall not ever be deemed to have been,

•fc.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 321

expenditure, in connection with the election incurred or autho-rized with the candidate or by his election agent for the purposesof this sub-section :

Provided that nothing contained in this Explanation shall affect—

(a) any judgment, order or decision of the Supreme Court wherebythe election of a candidate to the House of the People or tothe Legislative Assembly of a State has been declared void orset aside before the commencement of the Representation of thePeople (Amendment) Ordinance, 1974.

(b) any judgment, order or decision of a High Court, whereby theelection of any such candidate has been declared void or setaside before the commencement of the said Ordinance if noappeal has been preferred to the Supreme Court against suchjudgment, order or decision of the High Court, before suchcommencement and the period of limitation for filing such,appeal has expired before such commencement".

It appears to me that both parties to the case now before us wereunder the impression that the expenses incurred by a political party overits candidate's election was outside the prescribed limit which operatedonly against expenditure by a candidate himself. Hence, the petitioner hadnot pleaded expenses incurred by the party of the original respondent asexpenses authorised by the original respondent. The • test of authorisationwouid naturally be the creation of a liability to reimburse whoever spendsthe money and not necessarily the provision of money before hand by thecandidate on whose behalf it is spent. Nevertheless, the authorisation hasto be set up and proved. In the wriften statement filed on behalf of theoriginal respondent, it was very frankly admitted that some expenditure,incurred by the local Congress Party itself, had not been shown as electionexpenses of the candidate herself. This was the position because, on theside of the original respondent also, the law was understood to be as itis found now clarified by the addition of an explanation to Sec. 77(1) ofthe Act.

The second question which arises for consideration is : if some ex-penses are shown or admitted to have been incurred by the candidate'sparty or third persons over the election of the successful candidate, is itpossible to separate it from a total expenditure on more than one consti-tuency by some process of estimation and apportionment ? Of course, thisquestion can only arise if it is first proved that whatever expenditure wasincurred by candidates party or by some other person, who may be afriend, a relation or a sympathiser, was incurred in circumstances fromwhich it can be inferred that the successful candidate would re-imburse theparty or person who incurred it. As I have already held it is only thenthat expenditure could be held to be authorised by the candidate. It isnot enough that some advantage accrued or expenditure was incurred with-in the knowledge of the candidate. This was very clearly brought out inRananjaya Singh v. Baingh Singh and others [1955 (1) SCR 671]. In thiscase, the Manager, Assistant Manager 20 Ziladars, and peons of the pro-prietor of an estate in Uttar Pradesh had carried on election work, afterhaving been given a holiday on full pay by the proprietor of the estatewho was the father of the successful candidate. It was contended that in-asmuch as these persons were virtually employees of the candidate himself,their salary for the day must be added to the list of election expenses. ThisCourt repelled this contention on the ground that this extra expenditure


had not been authorised by the candidate or his agent. Hence it need notbe shown as an item of election expense. Voluntary expenditure byfriends, relations, or sympathisers, and expenditure incurred by a candi-date's party, without any request or authorisation by the candidate, hasnever been deemed to be expenditure by the candidate himself. [See RamDayed v. Brijraj Singh, (1970) 1 SCR 530 Magraj Patodia v. R. K. Birla(1971) 2 SCR 118].

An attempt was then made to pass the responsibility on the originalrespondent for the expenses of at least 23 vehicles whose numbers are men-tioned in a letter dated 25th February, 1971, written by Shri Kapur whothen the original respondent's election agent, and sent to the District Officer,E.ae Bareli stating as follows:

"Sir, I beg to say that the District Congress Committee, Rae Barelihas taken the following cars for election purposes in the threeParliamentary Constituencies, Rae Bareli, Amethi and Ram SanehiGhat. You may, therefore, kindly release them."

After giving numbers of the vehicles the letter proceeds :

"It is therefore, requested that the abovesaid cars may kindly be re-leased without delay. The letter of the President of DistrictCongress Committee about the abovesaid cars is enclosed here-with".

The letter of the President of the Committee, mentioned by ShriKapur, was a rather urgent request made to him by Shri Dal BahadurSingh, on 24th February, 1971 (Ex. A-43), after informing him that he isin difficulties as he had tried to find out unsuccessfully the whereabouts ofShri V. Vajpayee, who was contesting election from Amethi ParliamentaryConstituency and of Shri Baiznath Kureel, who was contesting the electionfrom Ram Sanehi Parliamentary Constituency. He, therefore, asked ShriKapur, the election agent of the original respondent, to send a letter tothe District Officer, who had refused to release the vehicles without theendorsement of the candidate concerned or his or her election agent.

It is clear from the abovementioned correspondence that Shri Kapurwas not speaking on behalf of the other two candidates of adjoining Par-liamentary Constituencies. He was not even undertaking to pay anythingfor the use of the vehicles on behalf of the original respondent. Shri Kacuralso did not state that these vehicles were needed for work in the originalrespondent's constituency. He merely forwarded the letter with a requestfor compliance with what Shri D. B. Singh wanted. Shri Dal BahadurSingh was concerned and entrusted with conducting electioneering work inthree adjoining Parliamentary Constituencies successfully, he had, therefore,made a frantic appeal to Shri Kapur to come to his help. Shri Kapur, with-out concealing any fact, had sent this very letter with a request for therelease of the vehicles to the District Officer concerned. On this evidencethe learned Judge came to the conclusion that it was not possible to saywhich vehicles, said to be Jeeps, had been utilized for election work andin which constituency. The learned Judge after considering the evidencerecorded the finding that it was not possible to hold that the 23 vehiclesin question had been used exclusively for the purposes of the election of•the original respondent and not for "general party propaganda purposes"''•for which the original respondent was not liable to pay.

"E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 323

In Hans Raj v. Pt. Hari Ram and Others (40 E.L.R. 125 and 128-139)this Court in a similar situation said :

"Whichever way one looks at the matter it is quite clear in view ofthe decision of this Court reported in Rananjaye Singh v. BaijnaihSingh & Others [(1955) 1 SCR 671] that the expenditure must beby the candidate himself and any expenditure in his (interest byothers (not his agents within the meaning of the term in the elec-tion law) is not to be taken note of. Here the hiring was by theCongress Committee which was not such an agent and thereforethe amount spent by the Congress Committee cannot be taken asan amount which must compulsorily be included in the expendi-ture over the election by a candidate. If this be the position, wehave to decide whether this amount spent on the jeeps must betaken to be an expenditure made by the candidate himself. Ofthat there is no evidence. The bill stands in the name of theCongress Committee and was presumably ipaid by the CongressCommittee also. The evidence, however, is that this jeep was usedon behalf of the returned candidate and to that extent we subs-cribe to the finding given by the learned judge. Even if it be heldthat the candidate was at bottom the hirer of the jeep and theexpenditure on it must be included in his account, the difficultyis that this jeep was used also for the general Congress propa-ganda in other constituencies".

In Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi and others,(42 E.L.R. 307 at 311) this Court held:

"It is now well settled that expenses incurred by a political party inSupport of its candidates do not come within the mischief of s. 123(6), read with S. 77 of the Act".

In Samant N. Balakrishna etc. v. George Fernandez and others, etc.,[(1969) 3 S. C. R. 603 at 637] this Court pointed out.

"In India all corrupt practices stand on the same footing. The onlydifference made is that when consent is proved on the ipart of thecandidate or his election agent to the commission of corrupt prac-tice, that itself is sufficient. When a corrupt practice is commit-ted by an agent and there is no such consent then the petitionermust go further and prove that the result of the election in so faras the returned candidate is concerned was materially affected".

However, as I have already held, there isi no case are evidence beforeus that the Congress Party was the agent, express or implied, of the ori-ginal respondent or acting as the channel through which any money what-soever was spent by the original respondent. The petition could not possi-bly succeed on the ground of exceeding election expenses. On the otherhand, on the findings given by me above, the expenses on the constructioncf rostrums were also erroneously added by the learned Judge. In fact,it seems that other two items mentioned there were also wrongly added.Expenses of the installation and use of loudspeakers and the power sup-plied were certainly shown to have been borne by the Congress Partyitself. If is true that when elections of persons in the position of thePrime Minister or even of Ministers, whether in the Central Governmentor a State Government take place, a number of people come forward toeither give or thrust their supposed aid in the election. It may be impos-sible for the candidate to refuse it without offending them. But it is also


impossible for the Courts to make the candidate himself or herself res-ponsible so as to impose an obligation upon the candidate to find out whatexpenses incurred by them were and then to add these on to the candi-date's account of expenses. That would be, obviously, a most unfair re-sult. And this is not what the law requires in this country. The law re-quires proof of circumstances from which at least implied authorisationcan be inferred.

The third and the last and a subsidiary submission on behalf of theelection petitioner, on election expenses, was that, Shri Dal Bahadur Singhnot having been produced by the original respondent, some sort of pre-sumption arises against the original respondent. I do not think that it ispossible to shift a burden of the petitioner on to the original respondentwhose case never was that Sri Dal Bahadur Singh, spent any money onher behalf. The case of M. Chenna Reddy versus Ram Chandra Rao, (40E. L. R., p. 390 at 415) was relied upon to submit that a presumption mayarise against a successful candidate from the non-production of availableevidence to support his version. Such a presumption, under section 114,Evidence Act, it has to be remembered, is always optional and one of fact,depending upon the whole set of facts. It is not obligatory.

In Chenna Reddy's case (Supra), the evidence seemed to have resultedin a prima facie case whose effect the respondent had to get rid of. In thecase before us, the election petitioner had summoned Shri M. L. Tripathi(PW-59) the Secretary of the District Congress Committee, who appearedwith account books of the Party at Rae Bareli. The election petitionercould get nothing useful out of his evidence. Even if the election petitionerdid not, for some reason, desire to summon Sri Dal Bahadur Singh similar-ly, his counsel could have requested the Court to exercise its discretionarypowers under Order XVI, Rule 14 C. P. C , but this was never done. Apresumption could not arise on the facts and circumstances of a case inwhich it could not be said that Sri Dal Bahadur Singh's evidence was neces-sary to discharge some burden of the original respondent. The original res-pondent had discharged whatever onus lay upon her by producing her ownelection agent Shri Kapur, who had kept her accounts. And, she had her-self appeared in the witness-box and faced a cross-examination which couldnot be held up as an example of complete fairness and propriety. I donot quite understand what presumption could possibly arise, due to non-productfon of Shri Dal Bahadur Singh, against what part of her case, andto what effect. It could certainly not be suggested that there was anyduty on her part to repeal pome case never set up against her. It was no-body's case that the local Congress Party was her agent.

I may now very shortly deal with the objection that, as a number ofMembers of Parliament belonging to the opposition parties were in deten-tion, under the preventive detention laws, which could not be questionedbefore Courts of law, because of the declaration of the emergency by thePresident, there was a procedural defect in making the amendments of theAct of 1951 and the 39th Constitutional amendment.

Article 122 of the Constitution prevents this Court from going into anyquestion relating to irregularity of proceedings "in Parliament'"." It readsas follows:

"122. d) The validity of any proceedings of Parliament shall not becalled in question on the ground of any alleged irregularity ofprocedure.


(2) No officer or member of Parliament in whom powers are vested byor under this Constitution for regulating procedure or the conductof business, or for maintaining order, in Parliament shall be sub-ject to the jurisdiction of any Court in respect of the exercise byhim of those powers".

What is alleged by the election-petitioner is that the opposition Mem-bers of Parliament, who had been detained under the preventive detentionlaws, were entitled to get notice of the proposed enactments and the 39thamendment so as to be present "in Parliament", to oppose these changesin the law. I am afraid, such an objection is directly covered by the termsof Article 122 which debars every Court from examining the propriety ofproceedings "in Parliament". If any privileges of Members of Parliamentwere involved, it was open to them to have the question raised "in Parlia-ment". There is no provision of the constitution which has been pointedout to us providing for any notice to each Member of Parliament. That,I think, isalso a matter completely covered by Article 122 of the Consti-tution. All that this Court can look into, in appropriate cases, is whetherthe procedure which amounts to legislation or, in the case of a Constitu-tional amendmenti, which is prescribed by Article 368 of the Constitution,was gone through at all. As a proof of that, however, it will accept, asconclusive evidence, a certificate of the Speaker that a Bill has been dulypassed. See State of Bihar versus Kameshwar (A.I.R. 1952 S. C. 252 at266).

Again, this Court has held;, in Sharma versus Sri Krishna (A.I.R. 1960S. C. 1186), that a notice issued by the Speaker of a Legislature for thebreach of its privilege cannot be questioned on the ground that the rulesof procedure relating to proceedings for breach of privilege have not beenobserved. All these are internal matters of ,pocedure which the Houses ofParliament themselves regulate.

As regards the validity of the detentions of the Members of Parlia-ment, that cannot be questioned automatically or on the bare statementby counsel that certain Members of Parliament are illegally detained withsome ulterior object. The enforcement of fundamental rights is regulatedby Articles 32 and 226 of the Constitution and "the suspension of remediesunder these articles is also governed by appropriate constitutional provi-sions. Their legality and regularity cannot be collaterally assailed by mereassertions made by Counsel before us. I, therefore, over-rule these objec-tions to the validity of the amendments and the 39th Amendment as wecannot even entertain them in this manner in these proceedings.

I will now turn to the validity of clause (4) of Article 329-A soughtto be added by section 4 of the 39th Amendment. I will quote the whokor section 4 as some argument was advanced on the context in whichclause (4) of Article 329A occurs. Section 4 reads as follows :

"4. In part XV of the Constitution, after Article 329, the followingarticle shall be inserted, namely :

'329-A. (1) Subject to the provisions of Chapter II of the Part V [ex-cept sub-clause (<?) of clause (1) of Article 102,] no election—

(a) to either House gi Parliament of a person who holds the officeof Prime Minister at the time of such election or is appointed

-as Prime Minister after such election;

22—345 Elec. Com./ND/81


(b) to the House of the People of a person who holds the office ofSpeaker of that House at the time of such election or who ischosen as the Speaker for that House after such election ; shallbe called in question, except before such authority [not beingany such authority as is referred to in clause (b) of Article 329]or body and in such manner as may be provided for by orunder any law made by Parliament and any such law may pro-vide for all other matters relating to doubts and disputes inrelation to such election including the grounds on which suchelection may be questioned.

(2) The validity of any such law as is referred to in clause (1) andthe decision of any authority or body under such law shall not becalled in question any court.

(3) Where any person is appointed as Prime Minister or, as the casemay be, chosen to the office of the Speaker of the House of thePeople, while an election petition referred to in clause (b) ofarticle 329 in respect of his election to either House of Parliamentor, as the case may be, to the House of the People is pending,such election petition shall abate upon such person being ap-pointed as Prime Minister or, as the case may be, being chosento the office of the Speaker of the House of the People, but suchelection may be called in question under any such law as is re-ferred to in clause (1).

(4) No law made by Parliament before the commencement of theConstitution (Thirty-ninth Amendment) Act, 1975, in so far asit relates to election petitions and matters connected therewith,shall apply or shall be deemed ever to have applied to or in re-lation to the election of any such person as is referred to in clause(1) to either House of Parliament and such election shall not bedeemed to be void or ever to have become void on any groundon which such election could be declared to be void or has, beforesuch commencement, been declared to be void under any suchlaw and not with standing any order made by any Court, beforesuch commencement, declaring such election to be void, suchelection shall continue to be valid in all respects and any suchorder and any finding on which such order is based shall be andshall be deemed always to have been void and of no effect.

(5) Any appeal of cross-appeal against any such order of any courtas is referred to in clause (4) pending immediately before thecommencement of the Constitution (Thirty-ninth Amendment) Act,1975, before the Supreme Court shall be disposed of in conformitywith the provisions of clause (4).

(6) The provisions of this article shall have effect notwithstandinganything contained in this Constitution'."

Counsel for both sides are agreed that, for the purposes of the casebefore us, we need not consider the constitutional validity of clauses (1)to (3) of the newly introduced Article 329-A of the Constitution. I will,therefore, concern myself only with the constitutional validity of clause (4)of Article 329-A of the Constitution.

JE.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 327

Learned Counsel for the election-petitioner contended that the consti-tuent or amending power contained in Article 368 of our Constitution hadbeen misused to achieve some purpose which was either outside the Arti-cle or which struck at the roots of the "basic structure" or "the essentialfeatures" of our Constitution. It was submitted that the amendment is in-valid on an application of the tests laid down by a majority of the 13Judges who indicated certain basic and inviolable principles of our Consti-tution in Kesvananda Bharti's case (supra). It was contended that the new-ly added Article 329-A(4) of the Constitution, far from constituting aConstitutional law, which alone could be made under Article 368, did neteven satisfy the tests of a law, inasmuch as it did not lay down any generalrule applicable to all cases of a particular class but was really designed todecide one particular election case, which is now before us for hearing, ina particular way. According to learned Counsel, the amending bodies had,under the guise of an exercise of constituent power, really decided a parti-cular election dispute arbitrarily without following the elementary principlesof judicial procedure or applying any intelligible norms or principles ofjustice either as a Court of law would have done or as any body of per-sons entrusted with the duty to decide a matter justly or quasi-judiciailycould possibly have done. The assumption underlying this argument wasthat setting aside the results of a judicially recorded judgment and orderby declaring it void and the validation of an election held by a Court oflaw to be invalid necessarily involves the adoption of a judicial or a quasi-judicial procedure if the results are to appear just and not violatiye of thebasic principles of natural justice which must be held to be parts of theRule of law envisaged by our Constitution. What had been done by clause(4), according to the learned Counsel for the election-petitioner, wasnothing short of lifting and placing the elections of the first four dignitariesof State outside the range of questionability before any authority what-soever either in the past, present or future. As the only election out ofthose of these dignitaries still in dispute at the time of the passing of the39th Amendment was the election of the Prime Minister to the House ofthe People, now, under consideration in the appeals before us, it was sug-gested that all this was done, wholly and solely, though indirectly, with theobject of validating the Prime Minister's election as a Member of theHouse of Representatives in 1971. It sought to place the Prime Ministerand the Speaker in a separate class by themselves as candidates at a gene-ral election for the membership of the House of Representatives. It wasurged that there could be no reasonable or logical nexus between thealleged objects of such a classification and the results of the amendmentmade. It was urged that, inasmuch as a Prime Minister holds the pivotalposition in the governance of the country, there could not be a less andnot more need to ensure that the election of the holder of such a highoffice to a Parliamentary seat had been free from any corrupt practice. Itwas urged that the test and the procedure for determining whether theholder of such an exalted, responsible, and important office was duly elect-ed as a Member of Parliament could not, logically or reasonably, bedifferent from that which ordinary Members of the Parliament had to gothrough. It was pointed out that, in a case covered by this clause, therecould be no consideration at all, if the amendment is upheld, of the vali-dity of a past election by any authority in the future as all elections inthis very special and exceptional class had been validated without anyqualification and quite unconditionally. The effect was, it was urged, thatthe present Prime Minister was placed in a very privileged and exaltedposition which was not enjoyed by a past Prime Minister and which was


not meant to be occupied by any future Prime Minister. Such a procedueand such a result, it was contended, made a mockery of the concept offree and fair elections under a democratic system. Furthermore, it wasurged that it was destructive of the concepts of rule of law, of equality beforelaw, and of just determination of judicially triable dispu-.es. Taking awayof even the supervisory jurisdiction of superior Courts in elections of acertain class of dignitaries was characterised as a gross violation of a basicprinciple of our Constitution. It was also submitted that, if what was intendedto be conveyed by the amendment was that Parliament had withdrawn thecase before us from tSie sphere of judicial scruffy and determination andhad decided it itself, as was stated in his opening address by the learnedCounsel for the original respondent, not merely was the basic constitu-tional principb of separation oi! powers set at naught but :he primordialrule of natural justice, that no one should be a Judge in his own cause,had been infringed inasmuch as the dispute was really between a majoritypatty and the numerically minority groups or parties in "he Houses ofParliament. No hearing could be given to leaders oj the numericallyminority groups of parties in Parliament because they were, it was submitted,illegally detained under Preventive Detention Laws after a declaration ofemergency by the President of India, with the result that members ofParliament who did not support the ruling party were denied access toCourts so as to secure their release from detention and could not take partin proceedings which produced the Acts amending the Act of 1951, and,the 39th Amendment. I have already dealt with and rejected the objec-tion to the proceeding of the Houses of Parliament, on the collateralground of allegedly illegal detentions of opposition leaders.

AH the contentions of learned Counsel for the election-petitioners, apartfrom the alleged procedural defect in amending the Act of 1951 and theConstitution when a number of opposition Members of Parliament aredetained under the Preventive Detention laws, already dealt with by me,seemed directed towards producing two results either simultaneously oralternatively : firstly, to persuade us to hold that the constituent power hadbeen exceeded or sought to be utilised for extraneous purposes falling out-side the purview of Article 368 of the Constitution altogether : and, second-ly, to convince us that the effects of the 4th clause of "Article 329-A musttie such that, if this purported addition to our Constitution was upheld,the "basic structure" or the "basic features" or "the underlying princi-ples" of our Constitution will be irreparably damaged so that it could notany longer be looked upon as the same Constitution. It was submittedthat the majority view in Kesvananda Bharti's case (supra), which wasbinding upon us, will compel us to invalidate clause (4) of Article 329-A.There was, in the course of arguments, considerable overlapping betweentests and considerations appeartaining to the purposes and those involvingthe effects, consequences, or implications of clause (4) if it was upheld. Itwas proposed that purposes should be ascertained and their validity deter-mined, inter alia, in the light of the consequences and implications of up-holding the validity of the impugned clause. Both sets of contentions in-volved a definition of the scope of Article 368 and a determination of theexact nature of the function actually performed by the constituent authori-ties in passing the impugned clause (4) of Article 329-A.

We have heard the learned Attorney-General and the learned Solici-tor-General of India, in defence of the 4th clause of Article 329-A soughtto be added by the 39th Amendment, as well as Mr. A. K. Sen and

•E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 3 2 9

Mr. Jagannath Kaushal, learned Counsel for the original respondent, whoalso supported the validity of the impugned clause. The 1st contention ofthe learned Counsel seemed directed towards inducing us not to look beyondthe language to discover the purposes or the nature of the function per-formed in passing clause (4) of Article 329 or its effects. This contentionhad necessarily to rest upon the assumption that (provisions of clauses (4)and (5) and (6) of Article 329-A, sought to be introduced by the 39thAmendment, were valid and had the effect of depriving this Court of juris-diction to determine the validity of clause (4) by exploring the purposesand objects which may lie behind the plain meaning of clause (4). Ourdifficulty, however, is that even an attempt to give its natural and liberalmeaning to every word used in Clause (4), after hearing the statements

-made by learned Counsel supporting the 39th Amendment, to the effectthai Parliament had itself examined the validity of whatever order andfindings on question of fact or law are referred to there, and had reach-ed the conclusion that the order and each of the findings of fact on whichit was based must be adjudged to be void and of no effect, baffles us verymuch. This could only mean that Parliament, in its constituent capacity,had functioned as though it was a direct Court of Appeal from a judg-ment of the High Court while an appeal in the last Court is pending—aprocedure which has not been shown to have been followed so far in anycase brought to our notice either decided in this country or anywhere elsein the world, all the cases cited to support such a view being distinguish-able on facts and law applicable.

In the circumstances of this case, set out above, the findings on con-tested questions of fact and law and the order indicated by clause (4)

• could only be those contained in the judgment under appeal by both sidesbefore us. The language of clause (4) was, according to the submissionsof learned Counsel supporting the amendment, itself meant to convey thatafter going into the disputed questions of fact, the constituent bodies, hadreached the conclusion that the order and the findings must have no legaleffect. Indeed, the Solicitor-General went so far as to submit that Parlia-ment must be deemed to be aware of the contents of the whole record ofthe proceedings in the High Court, including the pleadings, the evidence,and the findings in the judgment of the High Court, as these were allavailable tb it. In other words, we must imagine and suppose that, what-ever may be the actual position, Parliament had sat in judgment over thewhole case as a Court of appeal would have done. But, the impugnedclause (4), if valid, would compel us to make a contrary assumption inas-much as it declares that all laws prior to the 39th Amendment, relating toelection petitions and "matters connected therewith", which must includethe grounds given in section 100 of the Representation of the People Act,1951, were neither to be applied nor ever deemed to have applied to sucha case as the one before us. This surely meant that they must be "deem-ed" not to have been applied by Parliament itself, according to the well-known rule of construction that a legal fiction, introduced by a deemingprovision, must be carried to its logical conclusion and we must not allowour imagination to boggle at the consequences of carrying the fiction to

' its logical conclusions. See : East End Dwellings Co. Ltd. versus FinsburyBorough Council [(1952) A. C. p. 109)].

At the same time, it was contended, and, this was especiallyemphasised by Mr. Jagannath Kaushal, that Parliament and the ratifying

• legislatures of the State—participating in the constitution making process


had not applied any pre-existing norms but had merely declared andregistered, almost automatically, without any need to consider anythingfurther or to apply any law whatsoever to any facts, what followed fromthe abrogation of all pre-existing law, with its procedure and norms, sofar as the election-petition against the original respondent was concerned.This meant that the constituent bodies, proceeding on the assumption thatthe High Court had rightly held the original respondent's election to beinvalid by applying the provisions of the 1951 Act, had considered itnecessary to validate what really was invalid according to the 1951 Act.In view of what I have already held on merits, such an assumption, if itwas there at all, could only be based on a misconception.

The conflicting points of view, advanced in support of the amend-ment, enabled the election-petitioner's counsel to find support for his con-tention that the impugned clause (4) obviously meant that a consideredjudgment on, inter alia, disputed questions of fact, however erroneous, hadbeen swept aside, quite unceremoniously, mechanically, and, without asemblance of a quasi-judicial procedure, by a purported exercise of cons-tituent power by the constituent bodies, consisting of the two houses ofParliament and the ratifying legislatures of the various States. He urgedthat the alternative contention of Mr. Kaushal constituted an admissionthat no procedure whatsoever, which could be considered either reasonableor appropriate for a judicial or quasi-judicial determination of any ques-tion of fact or law was followed. He contended that whichever of thetwo alternative contentions of counsel supporting the 39th Amendmentwas accepted by us, his submission that the amendment was ultra vires,arbitrary, and improperly motivated was made out.

The essence of judicial or quasi-judicial function is the application ofa law which is already given by the law making authority to the judicialor quasi-judicial authority to apply. This law has to be applied to cer-tain findings after determining the disputed questions of fact in a mannerwhich must conform to the canons of natural justice. Learned Counsel forthe election-petitioner contended that it was not "necessary to go beyondclause (4) to reach the conclusion that what was being done was to decidea dispute which could, under the law as it existed till then, only be judi-cially determined in the mode prescribed by Article 329(b) read with theAct of 1951 which could not be circumvented even before Article 329-Aengrafted exceptions on it and the Act of 1951 had been repealed retros-pectively in its application to the Prime Minister. The result of a sort ofconsolidated legislative-CM/w-adjudicatory functions was sought to be em-bodied in Article329-A(4) by purported Constitutional amendment. Hecontended that we were bound to consider and decide whether the "cons-tituent power" contained in Article 368 of the Constitution was meant tobe used in this manner. Such use would, he submitted, fall outside Article368. Hence, he submitted, there was no need to resort to principles emer-ging from a consideration of what may be spoken of as the basic struc-ture or essential features of the Constitution. It was enough if we heldthat "constituent power" did not cover such a use made of it. LearnedCounsel for the election-petitioner had thus advanced an alternative, con-tention based upon the meaning of the term "constituent power" intro-duced by the 24th amendment; and, in my opinion, we are duty boundto interpret Article 368 and determine the precise meaning of "constituentpower" when properly called upon by a party before us to do so. Indeed,the very contention that we should so construe "constituent power" as to-


deny ourselves the jurisdiction to decide the validity of what was doneunder a purported exercise of such a power involves a determination ofits meaning. I fail to see how our jurisdiction to do this could be barredby the provisions of the very amendment whose constitutional validity is.challenged before us.

Learned Counsel supporting the 39th Amendment, had, in defence ofthe amendment, advanced arguments which go beyond the position whichwas adopted to support the amendments considered by us in KesvanandaBharti's case (supra). The new argument now advanced to use thelanguage of the Solicitor General in his last written submissions, is that thepower of amendment under Article 368 is "the very original power ofthe ^people which is unbroken into the legislative and the executive andthe judicial". He submitted that the implied limitations, to which themajority decision in Kesavananda Bharti's case (supra) has committed thisCourt for the time being, are no longer available when considering this"unbroken" Power. Mr. A. K. Sen learned Counsel for the original-res-pondent, puts this very argument in the following words in his writtensubmissions :

"In the hands of the constituent authority there is no demarcation ofpowers. But the demarcation emerges only when it leaves thehands of the constituent authority through well defined channelsinto demarcated pools. The constituent power is independent ofthe fetters or limitations imposed by separation of powers in thehands of the organs of the Government, amongst whom thesupreme authority of the State is allocated.

The constituent power is independent of the doctrine of separationof powers. Separation of powers is when the constitution isframed lying down the distribution of the powers in the differentorgans such as the legislative, executive and the judicial power.The constituent power springs as the fountain head and partakesof sovereignty and is the power which creates the organ and dis-tributes the powers. Therefore, in a sense the constituent poweris all embracing and is at once judicial, executive and legisla-tive, or in a sense super power. The constituent power can alsochange the system of checks and balances upon which the separa-tion of powers is based".

The theory advanced before us may have been designed to escapethe logical consequences of the majority view in Kesvananda Bharti's case(supra) which cannot, sitting as a bench of five judges in this Court, over-rule. The theory is, however, quite novel and has to be, I think, dealtwith by us. It postulates an undifferentiated or a orphous amalgam ofbare power constituting the "constituent power". According to this theory,the power which constitutes does not need to be either constituted or pre-vented from exercising a power assigned by it already to a constitutedauthority. Hence, it is a power of a kind which is above the constitu-tion itself. If I am not mistaken, the learned Solicitor General did saythat the constituent power lies "outside" the Constitution. In other words,it is independent and above the Constitution itself because it operates onthe Constitution and can displace it with, so to say, one stroke of itsexercise. I do not think that such an extreme theory could be supportedby the citation of either the majority or minority views of Judges barringstray remarks made in other contexts, either in the /. C. Golaknath v. State


of Punjab (1967) 2 S. C. R. 672 or in the Kesvananda Bharti's case(supra). In fact, in neither of these two cases was the question raised orconsidered at all by this Court whether the amending power or ths "Cons-tituent power"' itself constituted such an amalgamated concentration ofpower, said to be distributed by the Constitution between the three differentorgans of a State at a "subsequent stage" whatever this may mean. Thedistribution of power of different kinds between the three organs wascompared to delegation of authority to agents which could be withdrawnat any time by the constituent bodies.

If we were to accept the theory indicated above, it would make itunnecessary to have a Constitution beyond one consisting of a singlesentence laying down that every kind of power is vested in the constituentbodies which may, by means of a single consolidated order or declarationof law, exercise any or all of them themselves whenever they please whe-ther such powers be executive, legislative, or judicial could this be theambit of "constituent power" in our Constitution ? Would such a viewnot defeat the whole purpose of a Constitution ? Does the whole Consti-tution so crumble and melt in the crucible of constituent power that itsparrs cannot be made out ? Before we could accept a view which carriessuch drastic implications with it we will have to over-rule the majorityview in Kesavananda Bharti's case (supra). The majority view in thatcase which is binding upon us, seemed to be that both the supremacy ofthe Constitution and separation of powers are parts of the basic structureof the Constitution.

If "constituent power", by itself, is so, transcendental and exceptionalas to be above the provisions of the Constitution itself, it should not,logically speaking, be bound even by the procedure of amendment pres-cribed by Article 368(2). I have not found any opinion expressed so farby any learned Judge of this Court to show that the constituent power isnot bound by the need to follow the procedure laid down in Article 368(2)of ihe Constitution. Indeed, rather inconsistently with the theory of an aabsolute and unquestionable power in some undifferentiated or raw andunfettered form, operating from above and outside the Constitution, learn-ed Counsel, supporting the impugned 4th clause in Article 329-A, con-cede that the constituent power is bound by the appropriate procedure laiddown in Article 368 for the amendment of the Constitution. What theyurge is that, subject to this procedure, which has been followed here, theconstituent power cannot be questioned because it is a "sovereign power".The logical consequence of such an argument also is that the majc ritv viewin Kesvananda Bharti's case (supra) was erroneous. It also overlooksthat judicial review of laws made by Parliament is always a review ofan exercise of "sovereign power". It may be that the object of die learn-ed Counsel in advancing this extraordinary theory T,vas to induce n.s torefer this case to a much larger bench so that the majority view in Kesva-nanda Bharti's case (supra) may, if necessary, be overruled. I, however,doubt whether putting forward such extreme and untenable propositionsis ihe best method of securing such a result.

1 think that the possibly theoretical question indicated above, what-ever may bs the object of raising it, does deserve to be seriously consi-dered and answered by us because it discloses a basic misconception.Therefore, I propose to consider it at a length which seems to me to bejustified by our need to clarify our thinking on a basic or "key" concept


without a final commitment to a particular view on it. Clearer thinking,by examining a basic theoretical question from every conceivable angle,leads. I believe, to that open mindedness which is needed by lawyers noless than by any other class today so that we may, contrary to our repu-tation, be responsive to the inevitable challenges of change. Justice Holmesonce said : "Theory is the most important part of the dogma of law. asthe architect is the most important man who takes part in the buildingof a house"' [Holmes, Collected papers (1921) 200].

It seems to me that the words "sovereignity" and "sovereign power",, used repeatedly by the learned Councel defending the 30th Amendment

to describe the constituent power, should, for several good reasons, beavoided, so far as possible, by lawyers who seek that clarity of thoughtfor which precision in language is the first requirement. One of thesereasons was given by Lord Byrce [Studies in "History and Jurisprudence"(1901) (503-504)]. The frontier districts, if one may call them so, ofEthics, of Law, and of political science have been thus infested by anumber of vague or ambiguous terms which have produced many barrendiscussions and caused much needless trouble to students. No offenderof this kind has given more trouble than the so-called 'Doctrine of Sove-reignty." Prof. Mr. Ilwain, however, opined : "But this very fact is proofof its vital importance in our modern world, and the wide variety of theviews held concerning its essence, as well as the conflicting conclusions towhich these views still lead, may furnish sufficient excuse for anotherattempt to clarify some of our ideas touching this central formula underwhich we try to rationalize the complicated facts of our modern politicallife". Another reason for eschewing such expressions, so far as possible,is that they are "emotive" or of a kind about which Mr. Leonard Soha-piro, (writing on "Key Concepts in Political Science" Series, at p.7) right-ly observed ; "Emotive words such as 'quality', 'dictatorship', 'elite' oreven 'power' can often, by the very passions which, they raise, obscure aproper understanding of the sense in which they are, or should be, orshould not be, or have been used. Confucius regarded the 'rectificationof names' as the first task of government. 'If names are not correct,language will not be in accordance with the truth of things', and this intime would lead to the end of justice, to anarchy and to war". At anyrate, in America, the concept of State Sovereignty, ranged agaist tha: ofnational sovereignty, did produce a civil war which is said to have beenprecipitated by the decision of the American Supreme Court in Bred Scottversus Sandjort [(1856) 19 How. 393.].

T must preface my observations here about the concepts of "sove-reignty" and exercise of "sovereign power", between which I make adistinction, with two kinds of explanation. The first kind involves anexposition of a functional or sociological point of view. I believe thatevery social, political, economic, or legal concept or doctrine must answerthe needs of the people of a country at a particular time. I see the deve-lopment of concepts, doctrines, and institutions as responses to thechanging needs of society in every country. They have a function to fulfilin relaMcn to national needs. The second type of explanation may becalled historical for meant merely to indicate and illustrate notions orconcepts put forward by thinkers at various times in various countries soas to appropriately relate them to what w? may find today under our

'Constitution. We have to appreciate the chronology or stages of their

^34 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

development if we are to avoid trying to fit into our Constitution some-thing which has no real relevance to it or bearing upon its contents orwhich conflicts with these. It must not, if I may so put it, be constitu-tionally "indigestible" by a constitution such as ours. Of course, it isnot a secret that we have taken some of the basic concepts of our Consti-tution from British and American Constitutions in their most developedstages. That too must put us on our guard against attempts to foist uponour Constitution something simply because it happens to be either aBritish or American concept of some particular period which could notpossibly be found in it today. Therefore, both types of explanation aip>-pear to be necessary to an exposition of what may or may not be foundin our Constitution.

I certainly do not think that Judges of this Court have or shouldthink that they have the power to consciously alter, under the guise ofjudicial interpretation, what the Constitution declares or necessarily im-plies even though our pronouncements, interpreting the Constitution, may,have the effect of contributing something to the growth or even changeof Constitutional law by clearing doubts, removing uncertainties, or fillingup of gaps to a limited extent. If the law embodied in our Constitution,as declared by his Court, is not satisfactory. I do not think that wecan or should even attempt to stand in the way of a change of any kindsought through appropriate constitutional means by the constitutionallyappointed organs and agencies of the State. If, however, this Court isasked to declare as valid what seems to it to fall clearly outside the ambitof the Constitution and indeed, what is even claimed to be operatingfrom outside the Constitution and described as a supra Constitutionalpower, there may be no alternative left to it except to declare such aclaim to be really outside the Constitution. It we were to do that wewould only be accepting the professed basis of the claim without conceed-ing its constitutional validity. After all, we are really concerned with thequestions of constitutional validity which can only be resolved by references,to what the Constitution contains, either expressly or by a necessary impli-cation, and not with what is beyond its range except in so far as this alsomay be necessary to explain what is or what is deemed to be a part ofour Constitution.

The term "sovereign" is derived from 'the Latin word'1Superanus"which was akin to "Suzerian" suggesting a hierarchy of classes whichcharacterised ancient and medieval societies. In its origin, it is an attri-bute assigned to the highest living superiors in the political hierarchy andnot some abstract quality of a principle or of a law contained in a docu-ment—a meaning, as will be shown here, which emerges clearly later. Intimes of anarchic disorder or oppression, by local straps or chieftan orbarons or even bullies and criminals, ordinary mortals have sought the pro-tection of those who could give it because of their superior (physical might.No book or document could provide them with the kind of help theyneeded. They looked up to their "sovereign liege and Lord", as the medie-val monarch was addressed by his subjects, for protection against everykind of tyranny and oppression.

The Greek and Romans were not troubled by theories of "Sovereignty"in a State. The principle that Might was Right was recognised as the un-questioned legally operative principle at least in the field of their Consti-tutional laws. Greek philosophers had, however, formulated a theory of aLaw of Nature which was, morally, above the laws actually enforced. In


later stages of Roman Law, Roman jurists also, saturated with Greeknotions of an ethically superior law of Nature, said that the institution ofslavery, which gave the owner of a slave theoretically absolute powers oflife and death over the slave, just like the powers of a parter families overhis children, was contrary to Jus naturate although it was recognised byJus gentium, the laws of then civilised world. Aristotle, in his analysis offorms of government had emphasized the importance of the Constitutionof a State as a test or determinant of sovereign power in the Stale. And,Roman juristis, had, indirectly, cleared the path for the rise of modernlegalism and constitutionalism by rescuing law itself from the clutches of asuperstitious reverence for customs, surrounded with ceremonial and ritua-listic observances an cumbersome justice defeating formalism, through fic-tion and equity, and forged a secular and scientific weapon of socio-eco-nomic transformation. All this was very useful in preparing for an age inwhich secular law could displace religion as the "control of controls" {seejullius Stone's "Province and Function of Law", 1961 Edn. p. 754, 767).

Romans not only clarified basic notions but developed a whole armouryof new forms in which law could be declared or made : Lex ; Pelbiscitum ;Magistratum Edicta; Senatusconsulta; Responsa Prudentiuum; Prin-cipium Placita. The last mentioned consisted of orders of Roman Em-perors which were of various kinds, some of general application to cases ofparticular kinds and other for particular individual cases; Edicta, Decreta,Maxidata, Rescripta. They had the "force of law" or "Lex" which couldbe roughly equated with our statutory law. "Dectreta" were issued as deci-sions on individual disputes, in exercise of the Emperor's power "under"the authority of "Lex de Imperio", although "in the classical period it wasfirmly established that what the Emperor ordinated had the force of law(See: R. W. Leage on Roman Law, Ed. 1961 p. 32). The point to noteis that, even in the embrayonic stages of Government through legislationJaw making and decision of individual cases are found distinctly separate.

After the break-up of the Roman Empire, there were attempts inmedbval Europe, both by the Church and the Kings, to develop spiritualand temjporal means for checking wrong and oppression. Quests for thesuperior or a sovereign power and its theoretical justifications by bothecclesiastical and lay thinkers were parts of an attempt to meet this need.The claims of those who, as vicars of God on earth, sougth tomeddle with mundane and temporal affairs and acquire even political powetand influence were, after a struggle for power, which took different form?in different countries, finally defeated by European Kings with ihe aid oftheir subjects. Indeed, these Kings tried to snatch, and, not without suc-cess, to wear spiritual crowns which the roles of "defenders of the faith"carried, with them so as to surround themselves with auras of divinitv.

The theory of a legally sovereign unquestionable authority of the King,based on physical might and victory in battle, appears to have been deve-loped in ancient India as well, by Kautilya, although the concert of aDharma, based on the authority of the assemblies of those who werelearned in the dharmashstras, also completed for control over exercise ofroyal secular power. High Philosophy and religion, however, often seemto have influenced and affected the actual exercise of sovereign power andsuch slight law making as the King may have attempted. The ideal King,in ancient India, was conceived of primarily as a Judge deciding cases orgiving orders to meet specific situations in accordance with the Dharma

3 3 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVlI

Shastras. It also appears that the actual exercise of the power to administerjustice as often delegated by the King to his judges in ancient India. In-deed, according to some, the theory of separation of powers appears to havebeen carried so far (see K. P. Jayaswal in "Mannu and Yajnavalky". ABasic History of Hindu Law—1930 Edn. p. 82) that the King could onlyexecute the legal sentence passed by the Judge.

We know that Semetic prophets, as messengers of God, also becamerulers wielding both spiritual and political, temporal power and authorityall hough to Jesus Christ, who never sought temporal power, is ascribed thesaying "render unto Caesar the things that are Caesar's and to God things thatare God's". According to the theory embodied in this saying, spiritual andtemporal powers and authorities had to operate in different orbits of poweraltogether. Another theory, however, was that the messenger of God hadgiven the sovereign will of God Almighty which governed all matters andthis could not bt departed from by any human authority or ruler. In thepractical administration of justice, we are informed, Muslim caliphs ac-knowledged and upheld the jurisdiction of their Kazis to give judgmentagainst them personally. There is an account of how the Caliph Omar,being a defendant in a claim brought by a Jew for some money borrowedby him for purposes of State, appeared in person in the Court of his ownKazi to answer the claim. The Kazi rose from his seat out of respect forthe Caliph who was so displeased with this unbecoming conduct that hedismissed him from office [See Sir A. Rahim's "Muhammadan Jurispru-dence" (1958) p. 21].

The theory, therefore, that there should be a separation of functionsbetween the making of laws, the execution of laws, and the application oflaws, after ascertaining facts satisfactorily, is not new. It is embedded inour own best traditions. It is dictated, if by nothing else, by common senseand the jprinciple of division of labour, without an application of whichefficient performance of any duties cannot be expected.

We may now look back at the theory and practice of sovereignty inEurope. There, wise Kings, in the Middle ages, sought the support of theirsubjects in gatherings of "colloquia", which, in the words of Mr. De Jonvenel(See: "Sovereignty and Inquiry into the Political Good" p. 177), had thetriple character of a session of justice, a council of State and the timidbeginnings of a legislative assembly were the means by which the affairs ofthe realm came more and more into the hands of the King". He goes onto observe : "The council of the King and the Courts of justice progres-sively developed an independent life, the assembly remaining under thename of Parliament in England and States-General in France".

Bodin, writing in the reign of Henry the III of France (1551 to 1589),viewed sovereignty as an absolute unlimited power which, though esta-blished by law, was not controlled by it. According to him, under an idealsystem, sovereignty was vested in the King by divine right. The King'sword was law. But, even according to Bodin, although thff Sovereign wasfree from the trammels of positive law, as he was above it, yet, he was'bound by divine law and the law of nature as well as by the commonlaw of nations which embodies principles distinct from these" (See Dun-nings "History of Political Theories" : "Ancient & Medeival" p. 28). Hob-bes, a century later continued this line of thinking; on an entirely secular.and non-moral plane. He opined: "Unlimited power and unfettered discre-

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 337"

tion as to ways and means are possessed by the sovereign for the end witha view to which civil society is constituted, namely, peace and escape fromthe evils of the State of nature" in which the life of individuals was "nasty,brutish and short". Although, Hobbes visualised the existence of a socialcompact as the source of the authority of the sovereign, yet, he lookedupon the compact only as a mode of surrender by the subjects of all theirindividual rights and powers to the sovereign who could be either an indi-vidual or a body of persons. Subjects, according to him, had no right torely upon the compact as a means of protection against the sovereign. Heprovided the fullest theoretical foundations of a Machiavellian view ofsovereignty.

As we know, in the 17th and 18th centuries, European monarchs camein sharp conflict with the representatives of their subjects assembled in"Parliament" in England and in the "States General" in France. And,theories, were put forward setting up, as against the claims of Kings to ruleas absolute sovereigns by indefeasible divine right, no lesser claims to in-violability and even divinity of the rights of the people. But theories apart,practice of the art of Government proves that the effective power to gov-ern by the very nature of conditions needed for its efficient exercise, hashad to be generally lodged in one or few especially in times of crisis, butnot in all those who represent the people even under democratic forms ofGovernment. Direct democracy, excep in small city States such as thoseof ancient Greece, is not practically feasible.

Theories of popular sovereignty put forward by Locke and Rousseaucame to the fore-front in the l'7th and 18th centuries an era of revolu-tionary changes and upheavels. The theory of certain immutable indivi-dual natural rights as the basis of a set of positive legal rights, essentialand necessary to the fulfilment of the needs of human beings as individualswas advanced by Locke. He visualised a social contract as a means ofachieving the welfare of individuals composing society. He also advocatedseparation of powers of government in a Constitution as a method of secu-ring rights of individual citizens against even their own Governments. Mon-tesquieu elaborated this theory. The ideas of Rousseau were amongst thosewhich contributed to produce that great conflageration, the French Revo-lution, which was described by Carlyle as the "bonfire of feudalism", Gov-ernment, according to Rousseau, in all its Departments was the agent of theGeneral Will of the Sovereign people whose welfare must always be itsaim and object. But, the General Will for the time being was also liableto err aboiit the particular means chosen to achieve the ends of good Gov-ernment. There was, according to Rousseau, also another part of the"General Will" which was more permanent and stable and unerring anddecisive. He hinted that there was what Bosanguet (See The PhilosophicalTheory of the State Chap. V) called the "Real Will", the basis of whichwas found in Rousseau's philosophy. As pointed out by T. H. Green, inhis lectures on "principles of Political Obligation" (1931 Edn. p. 82)Rousseau's theory of sovereignty was designed to bring out that;

"there's on- earth a yet auguster thing, Veiled through it, be thanParliament and King".

T. H. Green said : "It is to this 'auguster thing' not to such supremepower as English lawyers held to be vested in 'Parliament and king' thatRousseau's account of the sovereign is really applicable".

.338 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

The ideas of Rousseau were subsequently used by Hegelian andIdealist political philosophers to deify the State as the repository of the"Real Will" "of the people and by Marxists to build their theory of adictatorship of the proletariat. But, the views of Locke and Montesquieuweie sought to be given a (practical form by American Constitution makers,who imbued with them, devised a machinery for the control of sovereignpower of the people placed in the hands of the three organs of State sothai it may not be misused. Suspicion of Governmental power and fearof its misuse, which characterised liberal democratic thinking, underlay thedoctrine of separation of powers embodied in the American Constitution.

"The merits of democracy", according to Bertrand Russel (See "Power :A New Social Analysis" p. 187) "are negative : it does not insure goodgovernment, but it prevents certain evils". He pointed out (at p. 188) : Itis possible in a democracy, for the majority to exercise a brutal and whollyunnecessary tyranny over a minority The safeguarding of minorities, sofar as is compatible with orderly Government, is an essential part of thetaming of power." He also said (at |p. 192): "Where democracy exists,there is still need to safeguard individuals and minorities against tyranny,both because tyranny is undesirable in itself, and because it is likely to leadto breaches of order. Montesquieu's advocacy of the separation of legisla-tive, executive, and judiciary, the traditional English belief in checks andbalances Bentham's political doctrines and the whole of nineteenth centuryliberalism were designed to prevent the arbitrary exercise of power. Butsuch methods have come to be considered incompatible with efficiency.

Some quite honest, upright and intelligent people think that the in-efficiency, the corruption, the expense, the waste of time and effort, and thedelay is accomplishing what they regard as such too urgently needed socio-economic and cultural transformations of backward peoples today, involvedin treading the democratic path, are so great that they would readily sacri-fice at least some of the democratic processes and such safeguards againsttheir misuse as separation of powers and judicial review are meant to pro-vide. They would not mind taking the risk of falling into the fire to escapefrom what they believe to be a frying pan. Some may even agree withBernard Shaw, who liked to look at every thing turned upside down inattempts to understand them, that Democracy, with all its expensive andtime-consuming accompaniments, is, even in the most advanced countries,only a method of deluding the mass of the people into believing that theyare the rulers whilst the real power is always enjoyed by the few who mustbe judged by the results they produce, and not by their professions. Othersregard democracy as the only means of achieving the highest good and thegreatest happiness of the greatest number. They consider its maintenanceto be inextricably bound up with the preservation of the basic individualfreedoms and a supporting mechanism or structure of checks and balances,separation of powers, and judicial review. What some believe to be obs-tacles to any real progress are looked upon by others as almost sacred insti-tutions essential for the protection of their lives and liberties, hearths, andhomes, occupations and means of livelihood, religions, languages and cul-tures. Inevitability of change is, according to some, the basic and inesca-pable law of all life, the only questions to be considered being its pace anddirection: how soon or how late and whether the change is to be for thebelter or for the worse ? "El Dorado", some believe, lies ahead. Our marchtowards it, they say, should be orderly and disciplined. To others all changeis anathema as it is generally for the worse. The Golden Age, som:,1 believe.


lay in the past. Salvation of mankind, they think, lies in a return to theimagined pristine virtures of that past. Some assert that certain amend-ments of our Constitution have "defaced and defiled" it (See Mr. Palkhi-vala's "Our Constitution"). Others maintain that these very amendmentshave made our Constitution a more potent instrument of those socio-eco-nomic and cultural transformations for which Ithe Constitution was designed(See Dr V. A. Seyid Muhammads "Our Constitution for Haves or Have-nots?").

Judges must, no doubt, be impartial and independent. They cannot, ina period of intensified socio-economic conflicts, either become tools of anyvested interests, or function, from the bench, as zealous reformers propa-gating particular causes. Nevertheless, they cannot be expected to have nonotions whatsoever of their own, or to have completely blank minds an im-portant questions indicated above which, though related to law, really falloutside the realm of law. They cannot dwell in ivory towers or confinetheir processes of thinking in some hermetically sealed chambers of purelylegal logic artificially out off from the needs of life around to which lawmust respond. Their differing individual philosophies, outlooks, andattitudes on vital question, resulting from differences in temperament,education, tradition, training, interests and experiences in life, will oftendetermine their honest choices beltween two or more reasonably possibleinterpretations of such words as "amendment" or "constituent power" inthe Constitution. But, on certain clear matters of principle, underlyingthe Constitution, no reasonable person could entertain two views as towhat was or could be really intended by the Constitution makers. Oneof these matters, clear beyond the region of all doubt, seems to me to bethat the judicial and law making functions, however broadly conceived,could not piossibly have been meant to be interchangeable, They are notincapable of distinction and differentiation in any constitutionally prescribedsphere of operation of power including that of "constituent power". Eachhas its own advantages and disadvantages and its own natural modusoperandi.

A lamentable example of what took place in the course of EnglishConstitutional history when a House of Commons, composed of veryintelligent and learned people, one of whom, Holt, subsequently became adistinguished Chief Justice of England, took upon itself to sit in judgmenton a decision of two Judges of the King's Bench Division, one of whomwas suspected of being a partisan of Royal prerogative and power at atime when a struggle for supremacy between the competing legal claimsof the King, as ithe titular sovereign, and those of the House of Commonsas representing the people, was still going on. In strict law, which wasunwritten, the position on thalt1 problem of power was not quite clear atthat time. The episode is thus described by Lord Denman, C. J., inStockdale versus Hansard (1) (at p. 1163) :

"The next case to which I advert in truth embraced no question ofprivilege whatever; but, as one of the highest authorities in theState has thought otherwise, I shall offer some comments upon it;I mean Jay versus Topham (112 How St. Tr. 821). The Houseof Commons ordered the defendant, their serjeant-at-arms, toarrest and imprison the plaintiff for having dared to exercise thecommon right of all Englishmen, of presenting a petition to theKing on the state of public affairs, at a time when no Parliament


existed. For this imprisonment an action was brought. Thedeclaration complained, nolt only of the personal trespass, butalso of extortion of the plantiff s money practised by defendantunder colour of the Speaker's warrant. The plea of justificationunder that warrant, which could not possibly authorise theextortion, even if it could the arrest, was over-ruled by this Court,no doubt with the utmost propriety, for the law was clear; LordEllenborough points this out in the most forcible manner, in 14East, 109. Yet for this righteous (judgment C. 1. Pemberton andone of his bretheren were summoned before the ConventionParliament', when they vindicated their conduct by unanswerablereasoning, but were, notwithstanding, committed to the prison ofNewgate for the remainder of the session. Our respect andgratitude to the Convention Parliament ought not to blind us to thefact that this sentence of imprisonment was as unjust and tyrannicalas any of those acts of arbitrary power for which they deprivedKing James of his Crown. It gave me real pain to hear theAttorney-General contend that the two Judges merited the foulindignity they underwent, as they had acted corruptly in concertwith the Duke of York. In support of this novel charge, heproduced no evidence, nor any other reason but that the -plea, asset out in Nelson's Abridgement (a), appears to have been in barrand not to the jurisdiction. But the Commons, who knew theirown motives, made no such charge : the record produced there,on law, exhibits a bad plea for the reasons assigned by LordEllenborough; and the judgment punished by the Commons couldnot have been different without a desoriion of duty by the Judges".

[(a) 2 Nels. Abr. 1248. The plea there is that pleaded, not in Jayversus Topham, but in Verdon versus Topham.. See 14 East, 102note (a).]

In Stockdale versus Hansard (supra) the action of the House of Com-mons, on Jay versus Topham (supra), was practically declared to be illegalor unconstitutional for arbitrariness. The sovereign British Parliament,however, did not alter but has acquiesced in (the law as stated by LordDenman who pointed out, by references to a number of precedents, thatCommon Law Courts had continuously been determining questions relatingto the very existence of an alleged privilege and defining its orbit onclaims based on the ground of a Parliamentary privilege. And, EnglishCourts have gone on doing this unhesitatingly after Stockdale versusHansard (supra), just as they had done earlier, as a. part of their. functionand duty to interpret and declare the law as it exists.

Let me go back a little further to the time when another English ChiefJustice, Sir Edward Coke, who,' on being summoned, with his brotherJudges, by King Jlames the 1st, to answer why the King could not himselfdecide cases which had to go before his own Courts of justice, asserted:" no king after the conquest assumed to himself to give any judgmentin any cause whafeoever, which concerned the administration of justicewithin this realm, but these were solely determined in the Courts of Justice".When the king said that "he thought the law was founded on reason, andthat he and others had reason, as well as the Judges", Coke answered :

"True it was, that God had endowed his Majesty with excellent science,and great endowments of nature ; but his Majesty was not learned


in the laws of his realm of England, and causes which concernthe life, or inheritance, or goods, or fortunes of his subjects, arenot to be decided by natural reason, but by the artificial reasonand judgment of the law, which law is an act which requires longstudy and experience, before that a man can attain to the cogni-zance of i t ; and that the law was the golden met-wand and mea-sure to try the causes of the subjects; and which protected hisMajesty in safety and peace."

(The 'Higher Law' background of American Constitutional Law byEdward S. Gorwin, p. 38-39).

We know that Coke even advanced the claim, in Bokhara's (1) case,that Courts could invalidate acts of Parliament if they contravened rules ofnatural justice such as that a man shall not be heard before he is con-demned or that he should be a Judge in his own cause. As Ivor Jenningspoints out, in an appendix to "The Law and the Constitution" (5th Edn.1959 p. 318) the theory of Parliamentary sovereignty or supremacy could,by no means, be said to be firmly established in England in Coke's time.

B'ackstone, while enunciating the theory of Parliamentary sovereigntyin the 19th century, as it was to be later expounded in the 20th centuryby Prof. A. V. Dicey, also claimed superiority for "the wall of nature whichwas common to all mankind". He said about this law:

"It is binding over all the globe, in all countries, and at all times: nohuman laws are of any validity if contrary to this ; and such ofthem as are valid derive all their force and all their au.hority,mediately or immediately, from this original;"

(See : Dicey Law of the Constitution p. 62).

It is a matter of legal and Constitutional history that English Judgesfinally rejected claims based upon vague philosophical concepts or upona law of nature or appeals to the "yet auguster thing" pitted against statu-tory law except in so far ascertain rules of natural justice and reasoncould impliedly be read into acts of Parliament due to absence of s-atutoryprohibition and the need to observe them having regard to the characterof the function required by a statute to be performed. Constitutional his-torians, such as Holdsworth, have pointed out how English Comman Law-yers, some presiding as Judges over King's Courts of Justice, others sittingin Parilament as Legislators, joined hands to evolve, sustain, and give lifeto principles of "Sovereignty of Parliament" and the "Rule of Law" asunderstood by them. Dicey asserted, in his "Law of the Constitution";that both these principles so operated as to reinforce each other instead ofcoming into conflict with each other. One wonders whether this could besaid of later times when the need for more rapid transformations of socialand economic orders, in an effort to build up a welfare State in Britain,led to serious curtailments of what were at one time considered naturaland inviolable rights and to adoption of legislative devices such as HenryVlllth clause. We know that these developments evoked a (powerful pro-test from a Chief Justice of England, Lord Hewart, who wrote a book onthe subject: "New Depotism". Today, however, it cannot be said thatthe Courts of justice in England do not see the implications of a welfare

(I) (1610) 8 Co. Rep. 118 ~ *

23—345 Elec. Com./ND/81


Socialistic State which may demand the curtailment of liberties of subjectsiu many directions in order that the substance of democratic freedom, onlyattainable through removal of economic, social and educational disparitiesand barriers, may be attained.

Willis, dealing with the development of American Constitutional Law,wrote about the claim of Coke, mentioned above, to invalidate Acts ofParliament by reference to certain fundamental principles of natural justiceand of common law (See : Willis on Constitutional Law-Edn. 1936 p. 76):

"This dictum of Coke, announced in Dr. Bohman's case (1610), 8 Co.Rep. 118A) was soon repudiated in England, but the doctrineannounced in 'Coke's dictum found fertile soil in the United Statesand sprouted into such a vigorous growth that it was applied bythe United States Supreme Court in the decision of cases comingbefore i t ; and it has been said that the doctrine of the supremacyof the Supreme Court is the logical conclusion of Coke's doctrineof control of the Courts over legislation".

It seems to me that judicial review of all law making, whether it apper-tains to the sphere of fundamental law or of ordinary law, is traceable tothis doctrine of judicial control by reference to certain basic principles,contained in a Constitution and considered too inviolable to be easilyalterable. It may be that this doctrine is unsuitable for our country at atime when it is going through rapid socio-economic transformation.Nevertheless, so long as the doctrine is found embodied in our Constitution,we cannot refuse to recognise it.

In America, there was some doubt whether the doctrine of judicialreview of all legislation naturally flowed out of the vesting of judicial powerby Section 1 of Article 3 of their Constitution which says:

"The judicial power of the United States shall be vested in one SupremeCourt, and in such inferior Courts as the Congress may, from timeto time, ordain and establish."

(Willis on Constitutional Law—p. 1020).

There is no article there, like Article 13 of our Constitution, which declaredany kind of legislation abridging or taking away fundamental rights to be"void". The doubt was not without substance. It was removed by ChiefJustice Marshall whose judgment in Marbury v. Madison, (1803) Cranch137 firmly established the doctrine of judicial review and the supremacyof the Supreme Court of America, in the judicial field of interpretation, asthe mouthpiece of the Constitution, and, therefore, of the "Real Will" ofthe people themselves. The Constitution, as the basic or fundamental lawof the land, was to operate there as the touchstone of the validity ofordinary laws just as the validity of laws made by British colonial legisla-tures was tested by reference to the parental Act of the British Parliament.

Under our Constitution, by Article 141 of the Constitution, power isvested only in the Supreme Court and in no other organ or authority of theRepublic to declare the law "which shall be binding on all Courts withinthe territory of India". Section 143 of the Constitution of India also showsthat whenever questions of fact or law have either arisen or are likely tcarise, the President of India may, in view of their public importance, seekthe opinion of the Supreme Court, by a reference made to the Court. The


procedure on such a reference is that of a Judicial authority which hearsthose interested and then gives its opinion. Article 32 of the Constitutiongives a wide power to the Supreme Court "to issue directions or orders orwrits", which is larger than that of the British Courts issuing prerogativewrits, although it is confined to the enforcement of the rights conferred bypart 3 dealing with fundamental rights. The power of the High Courts ofthe various States under Article 226 of the Constitution to issue appropriatedirections, orders, or writs "to any person or authority including in appro-priate cases any Government", within the territories under its jurisdictionextends to "any other purpose", that is to say, to purposes other thanenforcement of fundamental rights. Article 227 also contains the power ofa High Court to superinted the functioning of "all Courts and Tribunals"within its jurisdiction. These powers of the High Courts are subject toappeals to the Supreme Court, which is also a repository of a specialjurisdiction under Article 136 to grant special leave to appeal "from anyjudgment, decree, determination, sentence or order in any cause or matterpassed or made by any Court or Tribunal in the territory of India." It istrue that there is no mention or vesting of judicial power, as such, in theSupreme Court by any Article of our Constitution, but, can it be deniedthat what vests in the Supreme Court and High Courts is really judicialpower? The Constitution undoubtedly specifically vests such power, thatis to say, power which can properly be described as "judicial power," onlyin the Supreme Court and in the High Courts and not in any other bodiesor authorities, whether executive or legislative, functioning under the Consti-tution. Could such a vesting of power in Parliament have been omitted itsit was the intention of Constitution makers to clothe it also with any similarjudicial authority or functions in any capacity whatsoever?

The claim, therefore, that an amalgam or some undifferentiated residueof inherent power incapable of precise definition and including judicialpower, vests in Parliament in its role as a constituent authority, cannot besubstantiated by a reference to any Article of the Constitution whatsoever,whether substantive or procedural. Attempts are made to infer such apower from mere theory and speculation as to the nature of the "Constituentpower" itself. I do not think that, because the constituent power necessarilycarries with it the power to constitute judicial authorities, it must also, byimplication, means that the Parliament, acting in its constituent capacitycan exercise the judicial power itself directly without vesting it in itself firstby an amendment of the Constitution The last mentioned objection mayappear to be procedural only, but, as a matter of correct interpretation ofthe Constitution, and, even more so, from the point of view of correcttheory and principle from which no practice should depart without goodreason, it is highly important.

This impels me to consider such theories of sovereignty as we mayfind embedded in our Constitution.

It is noteworthy that the phrase "Sovereignty and integrity of India'"was inserted in 1963 in Article 19(2), (3) and (4), to denote the political in-dependence and wholeness of the country vis-a-vis other countries. It wasalso introduced in the oaths of "allegiance" to the Constitution prescribedin the Third Schedule indicating that the duty to uphold "the Sovereigntyand integrity of India" follows from a recognition of the supremacy of'theConstitution. The term "sovereign" is only used in the preamble of outConstitution, which says:


"We, the people of India, having solemnly resolved to constitute Indiainto a Sovereign Democratic Republic and to secure to aJl itscitizens:

In our constituent Assembly this twenty-sixth day of November. 1949,do hereby adopt, enact and give to ourselves this Constitution."

This Court, exercising the powers vested in it under the Constitutionto declare the law of the land, cannot go behind the clear words of theConstitution on such a matter. We have to presume that the Constitutionwas actually made by the people of India by virtue of their politicalsovereignty which enabled them to create a legally Sovereign DemocraticRepublic to which they consigned or entrusted, through the Constitution,the use of sovereign power to be exercised, in its different forms, by thethree different organs of Government, each acting on behalf of the wholepeople, so as to serve the objects stated in the preamble. This referenceto "the people of India" is much more than a legal fiction. It is an assertionin the basic legal instrument for the governance of this country of the factof a new political power. The legal effect of the terms of the instrumentis another matter.

It has been pointed out, in the Kesavananda Bharti's case (supra), ihatthe preamble of our Constitution did not, like that of the American Consti-tution, "walk before the Constitution", but was adopted after the rest ofthe Constitution was passed so that it is really a part of the Constitutionitself. It means that the Constitution is a document recording an act ofentrastment and conveyance by the people of India, the political sovereign,of legal authority to act on its behalf to a "Sovereign Democratic Republic"."This Constitution" has a basic structure comprising the three organs ofthe Republic: the Executive, the Legislature and the Judiciary. It isthrough each of these organs that the Sovereign Will of the People has tooperate and manifest itself and not through only one of them. Neither ofthese three separate organs of the Republic can take over the functionassigned to the other. This is the basic structure or scheme of the systemof Government of the Republic laid down in this Constitution whose identitycannot, according to the majority view in Kesavananda's case (supra), bechanged even by resorting to Article 368. It necessarily follows, from sucha view, that Sovereignty, as the power of taking ultimate or final decisionson broad politico legal issues involved in any proposed changes in thelaw, becomes divisible. The people are not excluded from the exercise ofit. They participate in all the operations of the Republic through the organsof the State. They bind themselves to exercise their individual and collec-tive rights and powers only in the ways sanctioned and through agenciesindicated by the Constitution. The Republic is controlled and "directed bythe Constitution to proceed towards certain destinations and for certainpurposes only. The power to change even the direction and purposes isitself divided in the sense thait a proposed change, if challenged, must beshown to have the sanction of all the three organs of the Republic, eachapplying its own methods and prmciples and procedure for testing the cor-rectness or validity of the measure. This result whether we like it or not,necessarily follows from our present constitutional structure and scheme.If the judicial power operates here like a brake or a veto, it is not one

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN . 345

which can be controlled by any advice or direction to the judiciary as isthe case in totalitarian regimes. In our system, which is democratic, itsexercise is left to the judicial conscience of each individual judge. This isalso a basic and distinguishing feature of Democracy as Prof. Friedmanindicated in his "Law in a Changing Society" (p. 61) quoted by me inKesavtinmda Bharati's case (supra) at p. 859).

In Kesavananda Bharati's case (supra), I had approvingly quoted theviews of Prof. Ernest Barker, who, in his "Social and Political Theory",claiming to be elaborating the theory underlying the preamble to our ownConstitution, pointed out that, inasmuch as the Constitution is the instru-ment which regulates the distribution between and exercise of sovereignpower, by the three organs of the State, and it is there constantly to governand to be referred to and to be appealed to in any and every case of doubtand difficulty, it could itself, conceptually, be regarded as the true or"ultimate" sovereign, that is to say. Sovereign as compared with "imme-diate" sovereignty of an organ of the Republic acting within its own sphereand at its own level.

Of course, inasmuch ass the power of altering every feature of theConstitution remains elsewhere politically, the Constitution is neither theultimate "political" sovereign nor a legally unalterable and absolute sove-reign. All constitutional and "legal" sovereigns are necessarily restrainedand limited sovereigns. I thought and still think that such a working theoryshould be acceptable to lawyers, particularly as the dignitaries of State, in-cluding Judges of superior Courts, and all the legislators, who have totake oaths prescribed by the Third Schedule of our Constitution, swear"allegiance" to the Constitution as though the document itself is a personalRuler. This accords with our own ancient notions of the law as "TheKing of Kings" and the majesty of all that it stands for: The Rightfulnessof the Ends as well as of the Means.

The theory outlined above would, of course, be unacceptable ifsovereignty must necessarily be indivisible and located in a determinateliving person or persons—a really medieval concept which is not generallyemployed today even to describe the titular hereditary monarcfis as"sovereigns", although the dictionaries may still give the derivative meaningof "sovereign" as the human ruler. Modern theories of even politicalsovereignty advanced by the Pluralist School—e.g. Gierke, Duguit, Me lver,Laski—look upon it as divisible and not as absolute and unlimited. Indeed,they go to the extent of practically denuding sovereignty of ail its customaryconnotations. Duguit abandons "sovereignty" as an obsolescent doctrineand displaces it by the ruling principle of "social solidarity". Me lverthinks that the traditional concepts of sovereignty, dominated too long bylegalistic Austinian views, needs to be discarded. His conclusion is thatthe State, with which doctrine of sovereignty has been bound up, is "theassociation of associations" merely regulates the "principles of association"or relations between individuals and associations in the interest of Societyas a whole. He wrote :

"At any moment the State is more the official guardian than the makerof the law. Its chief task is to uphold the rule of law, and thisimplies that it is itself also the subject of law, that it is bound inthe system of legal values which it maintains."

(See R. M. Me lver : "The Modern State" p. 478).


Laski, while mainly accepting this rather negative approach, re-miniscent of 19th century Liberalism, would accord the State a much more"positive role in the interests not only oil social order but also of socio-economic engineering and progress.

Marxists, who saw in the State and its laws and all institutionssupporting an existing social order, the means of oppression and exploita-tion of the mass of the people, dreamt of the "withering away" of the Statewith its claims to 'Sovereignty'. But, the Russian Revolution was followedjby the vastly increased powers of the State run for the benefit of theproletariat. Nevertheless, the Constitution of the U.S.S.R. guarantees tocitizens not merely fundamental rights, including the rights to work, buthas a special department of the Procurator General to enforce due obser-vance of legality, according to the law of the Constitution, by all thefunctionaries of State. Article 104 of their Constitution reads :

"104. The Supreme Court of the U.S.S.R. is the highest judicialorgan. The Supreme Court of the U.S.S.R. is charged with thesupervision of the judicial activities of all the judicial organs ofthe U.S.S.R. and of the Union Republic within the limits esta-blished by law."

(See: A Denisov, M. Kirichenko Soviet State-Law p. 400).

It is true that legality is enforced in the U.S.S.R. not merely throughthe organs of the State but the vigilance of the Communist Party whichconsists of selected persons keeping a watch on the policy of the State.A. Y. Vyshinski, however, explained (See: Fundamental Tasks of SovietLaw 1938) that Soviet "Law can no more be reduced simply to policythan cause can be identified with effect". Strict observance of "SocialistLegality", under the supremacy of the Constitution, is entrusted to thecare of the State, with its three organs, the Communist Party, and thepeople of the U.S.S.R. (See: "The Soviet Legal System" by Messrs. JohnN. Hazard and Issac Shapiro). Although, Art. 15 of the Constitution ofthe U.S.S.R. speaks of the "Sovereignty" and "Sovereign Rights" of theUnion Republics, yet, it is made clear that these Republics function subjectto the supremacy of the Constitution. Hence, the supremacy of the Consti-tution is a principle recognised by the Constitution of the U.S.S.R. alsoas operating above and limiting the Sovereignties of the Socialist Republics.

Gierke made a wide survey and a penetrating analysis of juristic thinking,up to the end of the 19th century, on sovereignty, derived, on the onehand, from theories of the sovereignty of the Ruler, and, on the other,from theories of popular sovereignty. He observed: (See: "Natural Lawand theory of Society" by Otto Gierke translated by Earnest Barker, Vol.I, p. 153) about the approach of Kant:

"Kant sketches, indeed, an ideal Constitutional State in which popularsovereignty is nominally present; but no living 'subject' ofsupreme authority is anywhere really to be found in this State.The 'bearers' of the different powers (legislative, executive andjudicial) are supposed to govern, but each is subject to a strictlegal obligation appropriate to its own sphere; and over them alt,as the Sovereign proper, the abstract Law of Reason is finallyenthroned."

He concluded (at p. 153):


"The history of the theory of constitutionalism shows how a doctrinederived from the principle of popular sovereignty could producealmost the same results as the other (and apparently opposite)system of thought which started from the principle of thesovereignty of the Ruler. In the one case, just as in the other,the inviolability of sovereignty, and the unity of the personalityof the State, are sacrificed, in order to attain the possibility ofa constitutional law which is binding even on the Sovereign."

A theory of a "Legal Sovereignty" must necessarily demarcate thesphere of its "legal" or proper operation as opposed to mere use of powereither capriciously or divorced from human reason and natural justice.Earnest Barker's statement of it, quoted by me in Kesvananda's case (supra),seemed to me to satisfy this requirement. After pointing out thatSovereignty, by which I understand one recognised by law, is limited bothby its own "nature" as well as its "mode of action", it concludes: (at p.867-868):

"Sovereignty moves within the circle of the legal association, and onlywithin that circle it decides upon questions of a legal order, andonly upon those questions. Moving within that circle, and decidingupon those questions, sovereignty will only make legal pronounce-ments, and it will make them according to regular rules of legalprocedure. It is not a capricious power of doing anything in anyway; it is a legal power of settling finally legal questions in a legalway."

There should be no difficulty in accepting such a theory if one can conceiveof an ordered system or "government of laws" as opposed to a "Govern-ment of-men" placed beyond limitations of this kind. At any rate, it isimplicit in the very idea of a Constitution. Our Constitution not only re-gulates the operations of the organs of State but symbolises the unity ofthe Republic and contains the inspiring hopes and aspirations and cherishedgoals of all the efforts of the nation. It operates not merely through thelaw but also on the minds and feelings of the people.

Prof. Willis, in his "Constitutional Law of the United States" advocatesthe doctrine of "sovereignty of the People" for which he finds support inAbraham Lincoln's well known description of the American system as "aGovernment of the people, for the people, by the people" as well as in anumber of pronouncements of the American Supreme Court. After consi-dering and rejecting a whole host of theories cf political philosophers andjurists, including those of Bodin, Hegel, Hooker, Hobbes, Locke, Rousseau,Fichte, Kant, Austin, Brown, Dicey, Willoughby, Duguit and Laski, lieopines: (at p. 51):

"As Dewey says, the forces which determine the government aresovereign. The effective social forces are not the Union, nor theStates, nor the oligarchy of States, nor the organs of Government,nor the Constitution, nor natural law, but those forces whichcreated these organisations and agents and institutions, and towhom they are all ultimately responsible."

According to him, the "Sovereignty of the People" which he advocates doesnot mean an anarchic licence given to each individual or group to do as heor it pleases, but stands for the power of the people, "organised in Govern-ment to express and adjust their will either directly or through representa-

348 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL.

fives." He explains, in the rest of his work, how the government of theU.S.A., in the broader sense of all that social control which, operatingthrough the three departments of State, has to take place in accordance withthe Constitution. This concept of a nation "organised in Government"appears to me to clearly introduce the idea of a Constitution which laysdown what that organisation is and how it must operate. AlthoughProf. Willis rejects the view that the Constitution is "Sovereign", because i!can be altered by the people, he is obliged to accept something resemblingit because he sees that the "people", thought of as a mere aggregation oran amorphous mass, is too nebulous. Any satisfactory theory of sovereigntymust account for the power of the people to act in certain ways or to movein certain directions. A 'hydraheaded' multitude or mass of people will notknow how to act or in which direction to move. It is its "Organisation"which provides that. And, its effort to organise itself and to rationalisewill produce a Constitution for it which embodies its will as organised inthe form of a government. The will of the people is thus inseparable fron*a Constitution which enables it to be expressed and then to govern. TheConstitution neither is nor can be sovereign in the sense that the people whomade it cannot unmake it or change it. It only prescribes the correct modeof doing everything, including that of changing the very system of Govern-ment. It is only in this sense that it can be "Sovereign" or "supreme" andrule the life of a nation.

Another American writer, Willoughby, has put forward the view thatsovereignty, as an attribute of the State, conceived ofj as a juristic entityapart from its governmental organs, cannot be legally limited. Accordingto him, to limit it is to destroy it. He says (See: Willoughby on 'Funda-mental concepts of Public Law'—Tagore Law Lectures, 924 at p. 77) :"There would seem to be no more value in attaching legal right and dutiesto the sovereign State than there is in predicating the attributes of aoodness•and justice of a Divine Being who is regarded as Himself the creator, byHis own unrestrained will, of all distinctions between goodness and bad-ness". ' But, this seems more a metaphysical than a realistic, more a moralHobbes-Machiavellian than a Dante-Gandhian stance. If one's concept ofthe Divine Being are to be introduced into law, one could refer to those alsowhich see Divinity only in that order and that law which seems to pervadeand govern the whole physical world and the universe. Indeed, there arejudicial dicta to the effect that God Himself considered Himself bound bythose elementary principles of justice whose love was planted in man byHim. In Cooper versus Wandsworth Board of Works (1863) 14 C.B. (N.S~)180 Byles, J. observed:

. "The laws of God and man both give the party an opportunity to makehis defence if he has any. I remember to have heard it observeby a very learned man, upon such an occasion,* that even Godhimself did not pass sentence upon Adam before he was calledupon to make his defence. 'Adam' (says God), 'where art thou?Has thou not eaten of the tree whereof I commanded thee thatthou shouldes not cat'? And the same question was put to Evealso".

It is clear that no simple theory of sovereignty fits the complex factsof modern life. Every theory of today, ultimately, rests on concepts morerefined than the physical or spiritual might o£ some ruler, in whomexecutive, legislative, and judicial powers coalesce to take away all legaldistinctions between them. Even if that was ever the concept of Sovereignty

•E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 349

anywhere, it was certainly not that of our Constitution makers and it is notours today. Eve Willoughby, dealing with Constitutionalism (Willoughbyon' "Nature of the State" 1928, at p. 302) says: "the value of Constitutionalgovernment is not that it places sovereignty in the hands of the people, butthat it prescribes definite ways in which this sovereign power shall be exer-cised by the State". Hence, he too admits that the Constitution does place•some limitation on exercise of sovereign power. That seems to me to bethe essence of a Constitution and the rationale of its existence.

Still another American writer, Orfield, in the course if his discussion(See: "The Amending of the Federal Constitution" by Lester B. Orfield1971), of a number of concepts of sovereignty, seems sometimes to almostconsider Article 5 of the American Constitution, containing the constituentpower and its procedure, to be sovereign. He concludes his discussion onthe subject as follows (at p. 166):

"Each part of the amending body is subject to law, and may be alteredor abolished. The amending body itself may be altered throughthe amending process, and limitations on the future amending capa-city may be imposed. The amending body is an artificial sovereignderiving its being from a law in the form of Article Five. Theamending groups hold office for but a short time, and may besubplanted by others in the elections in which an increasingly largerelectorate participates. The theory of sovereignty, moreover, pre-supposes the continued orderly existence of the government. Incase of a revolution the commands of the sovereign would be dis-regarded, and authority could no longer be ascribed to the amend-ing body either in fact or in law. The moral, religious, physical*and other factual limitations on the supposed sovereign are so im-portant that it may perhaps be correct to say that they are alsolegal limitations, as there comes a time when law and fact shadeinto one another. Finally, when it is remembered that throughoutall history, American as well as European, there never has beena consensus as to the meaning of sovereignty it seems that theterm should be used only with the greatest circumspection".

He rejects the concept of sovereignty of the people as too vague andmeaningless. And, for the reasons given above, he rejects the theory ofa sovereignty of the amending body. His final conclusion seems to be thatit is better to avoid altogether entanglement in the concept of sovereignty.This view, however, overlooks the fact that lawyers need a working theoryof sovereignty to be able to decide legal questions before them. As betweenthe sovereignty of the amending Article and the sovereignty of the Consti-tution there should be little doubt that lawyers should and would prefer thesovereignty or supremacy of the whole constitution rather than of any partof it. On the face of it, it appears more reasonable and respectable toswear allegence to the whole Constitution, as we actually do, rather thanto Article 368 or to the amending powers contained in it. If there is a partof our Constitution which deserves greater devotion than any other part ofit, it is certainly the preamble to our Constitution.

The American Supreme Court, in the context of the especially Americanconditions and needs, after learning sometimes towards a recognition of"State Sovereignty" [See : Ware v. Hylton (1876) 3 Dall 199 : Dred ScoUvs.Sandjord (1856) 19 How 393] and at others towards a recognition of thedual system of Government which has prevailed in America [See: e.g.

3 5 0 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVIT-

Gibbus v. Ogden (1824) 9 Wheat p. 1] has. on the whole opted for the""Sovereignty of the People" which unifies the nation [See: e.s. V/hiU v.Heat (1871) 13 Wall. 646; Keith v. Clark (1878) 97 U.S. 554 National Prohi-bition Cases (1920) 253 U.S. p. 350].

I cannot, while I am on the subject of American conditions, resist thetemptation to quote ihe trenchant comments of Prof. Willis on what heconsiders to be the dangers of the American system of government. Hewrote (at pp. 68-69):

"But the greatest danger in popular sovereignty does not lie in the intel-lectual field, but in the moral. While our intellectual level is notas high as it ought to be, our moral level is much lower than it cansafely be if our form of government is to endure permanently.Millions of our citizens are already members of the crimi-nal class. Millions of other citizens who are not yet membersof the criminal class are in the economic world doing thingsjust as bad as the things which members of the criminalclass are doing. Millions of our people are concerned with theirown selfish interests instead of the common good. Millions of ourcitizens are only too ready to ruin themselves and the rest of ourpeople physically, intellectually, and morally by drugs and intoxi-cating liquorsi and vices. Our people do not seem to be muchconcerned with high ideals in any of the fields of human endeavour.Our people as a whole do not seem to be seriously concerned withsocial planning for the purpose of obtaining an ideal social order.They are more interested in rotation in office than they are ingood government. They are more interested in winning law suitsthan in ideal system for the administration of justice. They aremore interested in making fortunes in the practice of medicinethan in the prevention of disease. They are more interested inprofits in the business world than they are in a well-planned systemof business organisation adapted to the needs of our social order.They are more interested in individualism than they are in collec-tive planning for the good of all.

The effects of the moral standards of our people are already manifest.As a result of our political and economic theories, there has deve-loped a concentration of wealth unparalleled in human history.While on the whole the economic level is comparatively high inthe United States, the difference between the wealth of the manyand that of the few is startling. One-fourth of the families in theUnited States before the depression had incomes of less than $ 500and two thirds of the families in the United States incomes of lessthan $ 1,000, while 2 per cent, of our population owned 65 percent of the wealth. There were four men any one of whom hadan income as larger as five million of the poorest people in theUnited States. This concentration of wealth was probably one ofthe primary causes of the depression, and the depression hasthreatened our capitalistic system. This only shows the dangerinherent in our political organisation."

If the people of an advanced country like the U.S.A. left entirely to theconcept of popular sovereignty, have revealed the need for a more positiveguiding or moulding role of their State so as to overcome the dangers ad-verted to by Prof. Willis, how much greater are the needs of a people poten-tially so great but actually so backward economically and educationally as


ours, taken en masse, still are? Our concepts of sovereignty must accordwith the needs of the people of our country. Our Constitution, which hasbeen described by G. Austin as "the cornerstone of the Nation", was devisedas a means to serve those needs. It has not only the elevating preamble,deserving the allegiance of every rational human being, but, unlike theAmerican Constitution, the whole of Part IV of our Constitution whichcontains "Directive Principles or State Policy" to guide the future courseof State action particularly in the legislative field. It is true that provisionsof Part IV are not enforceable through the Courts against the State, butthey are declared as fundamental in the governance of the country and areused to interpret the Constitution and to fix its meaning. I think, from thispoint of view also, we can say that the concept of the Supremacy of theConstitution is, undoubtedly, more suited to the needs of our country thanany other so far put forwards. It not only places before us the goals towardswhich the nation must march but it is meant to compel our Sovereign Re-public with its three organs of Government to proceed in certain directions.It assumes that each organ of State will discharge its trust faithfully. Canwe deny it that supremacy which is the symbol and proof of the level ofour civilisation?

I find that the doctrine of the supremacy or sovereignty of the Consti-tution was adopted by a Bench of seven learned Judges of this Courtin Special Reference No. 1 of 1964, (1956) 1 S.C.R. 413 where Gajendra-gadkar, C.J., speaking for six learned Judges of this Court said (at p. 446):

"In a democratic country governed by a written Constitution, it is the< Constitution which is supreme and sovereign. It is no doubt

true that the Constitution itself can be amended by the Parlia-ment but that is possible because Article 368 ofl the Constitutionitself makes a provision in that behalf and the amendment of theConstitution can be validly made only by following the procedureprescribed by the said article. That shows that even when theParliament purports to amend the Constitution it has to complywith the relevant mandate of the Constitution itself. Legislators,Ministers and Judges all take oath of allegiance to the Constitu-tion, for it is by the relevant provisions of the Constitution thatthey derive their authority and jurisdiction and it is to the provi-sions of the Constitution that they owe allegiance. Therefore,there can be no doubt that the sovereignty which can be claimedby the Parliament in England, cannot be claimed by any Legisla-ture in India in the literal absolute sense."

The principle of the supremacy of the Constitution was then declaredby the majority of the learned Judges of this Court in Kesvamnda's case(supra) to be a part of the basic structure of the Constitution. The minorityopinion, while not specifically dissenting from this view, was that even whatwas considered by the majority to be a part of "basic structure" was alter-able under Article 368. But, no judge of this Court has so far held that,without even attempting to change what may be the basic structure of^constitution itself, by appropriate amendments; judicial power could beexercised by Parliament under Article 368 on the assumption that it wasalready there.

M. C. Setalvad, a distinguished jurist of India, said (See : "The CommonLaw of India" Hamlyn Lectures—12th series—1960) (at pp. 174-175):

"352 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

"The Constitution divides the functions of the Union into the threecategories of executive, legislative and judicial functions followingthe pattern of the British North America Act and the Common-wealth of Australia Act. Though this division of functions is notbased on the doctrine of separation of powers as in the UnitedStates yet there is a broad division of functions between theappropriate authorities so that, for example, the legislature willnot be entitled to arrogate to itself the judicial function of ad-judication. 'The Indian Constitution has not indeed recognisedthe doctrine of separation of powers in its absolute rigidity butthe functions of the different parts or branches of the Govern-ment have been sufficiently differentiated and consequently it canvery well be said that our Constitution does not contemplateassumption, by one organ or part of the State of functions thatessentially belong to another.' (See : Rai Saheb R. J. Kapur andOthers v. State of Punjab (1955) 2 SCR 225 at p. 235). This willno doubt strike one accustomed to the established supremacy ofParliament in England as unusual. In the course of its historicaldevelopment Parliament has performed and in a way still per-forms judicial functions. Indeed the expression 'Court of Parlia-ment' is not unfamiliar to English lawyers. However, a differen-tiation of the functions of different departments is an invariablefeature of all written constitutions. The very purpose of a writtenconstitution is the demarcation of the powers of different depart-ments of government so that the exercise if their powers may belimited to their particular fields. In countries governed by awritten constitution as India is, the supreme authority is notParliament but the Constitution. Contrasting it with thesupremacy of Parliament, Dicey has characterised it as the supre-macy of the Constitution."

A. V. Dicey, the celebrated propounder of the doctrine of thesovereignty of Parliament, had criticized Austin for frequently mixing up"legal sovereignty" and "political sovereignty" (See: Law of the Constitu-tion by A. V. Dicey—10th Edn. p. 72). He contrasted the British principleof "Parliamentary Sovereignty" with what* was described by him the"Supremacy of the Constitution" in America. He observed (at p. 165):

"But, if their notions were conceptions derived from English law. thegreat statesmen of America gave to old ideas a perfectly newexpansion and for the first,! time in the history of the worldformed a constitution which should in strictness be "the law cfthe land' and in so doing created modern federalism. For theessential characteristics of federalism—the supremacy of theconstitution—the distribution of powers—the authority of thejudiciary—reappear, though no doubt with modificaiions. in everytrue federal state."

He said (at p. 144):

"A federal state derives its existence from the constitution, just as acorporation derives its existence from the grant by which it iscreated. Hence, every power, executive, legislative, or judicialwhether it belong to the nation or to the individual States is sub-ordinate to and controlled by the constitution."

;He wrote about the American Supreme Court (at p. 159):


'"Of the nature and position of the Supreme Court itself this muchalone need for our present purpose be noted. The court derivesits existence from the Constitution, and stands therefore on anequality with the President and with Congress; the membersthereof (in common—with every Judge of the Federal Judiciary)hold their places during good behaviour, at salaries which cannotbe diminished during a judge's tenure of office."

The theory of the supremacy of the Constitution is thus not a new oneat all. It is inherent in the very concept of "the auguster thing" which liesbehind Parliament or king and is sought to be embodied in the Constitutiono! a country. The Judges, who are vested with the authority and chargedwith the duty to uphold the Constitution, do so as the mouthpieces of whathas been called the "Real Will" of the people themselves by political philo-sophers such as Bosanquet. That, as I have indicated earlier, is the theoryunderlying the system of judicial review. Such a system may delay change'sbut should not, I think, speaking entirely for myself^ deny or defeat theright of the people to bring about any change, whether basic or not, in theConstitution. Indeed, in Kesvananda's case (supra). I indicated that 1thought that the most proper and appropriate function of the amendingpower in a Constitution, which is also a part of the Constitution, and,indeed, its most potent part—was that of making basic changes so as toavert constitutional breakdowns and revolutions if possible. However, weare precluded from acting upon such a broad view of amending power inthis case as we are bound by the majority opinion in Kesvananda's case(supra) that implied limitations of "a basic structure", operating from evenoutside the language of Art. 368, as it stood before the 24th amendment,restrict its scope. These limitations must however, be related to provisionsof the Constitution.

It has not been argued before us that the introduction by the 24thamendment of the new clause (1) in Article 368, containing the "constitutentpower", itself amplifies or increases the contents or changes the characterof the power in Article 368 by making it a composite power so as to includea new type of judicial or quasi-judicial power also within its fold now. Itis evident from the judgments of learned Judges of this Court in Golak-nath's case (supra) that possible distinctions between "amending power" and"constituent power" and "sovereign power" figured prominently in argu-ments in that case. Wanchoo, J., in his minority opinion [see (1957) 2 SCRat p. 833], said that it was not necessary, for the purposes of that case, todecide whether the amending power was as wide as the "sovereign, power"of the Constituent Assembly which had framed our Constitution. After fillthe discussion that had taken place then, came the 24th amendment. Itdoes not use the words "sovereignty" or "sovereign power". I presume thatthe words "constituent power" were advisedly used in it so as to clarify theposition and not to put in or to include anything beyond constitution makingpower in Art. 368.

The "constituent power" is still bound by the exclusively prescribedprocedure to "amend by way of addition, variation, or repeal" any provi-sion of the Constitution. It is entirely a law making procedure elaboratelyset out in clause (2). In fact. Art. 368 contains so much of the fundamentallaw making or legislative procedure that five judges of this Court, led bySubba Rao C.J., opined in Golaknath's case (supra), that it was confinedto procedure and did not contain at all the substantive power to amend.Clause (1) of Art. 368, introduced by the 24th amendment, was, apparently,

3 5 4 S M T - INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVH

meant to remove this objection and to do no more. It could not be intendedto pour some new amalgam of executive and judicial or quasi-judicial subs-tantive powers into it also by some implication so as to do away with thevery need for such an elaborate and carefully drawnup Constitution suchas ours. The absence of any quasi-judicial procedure, from the comprehen-sively framed procedural provisions of Art. 368, seems extremely significant.It indicates that it was the clear intention of Constitution makers that nojudicial or quasi-judicial function could be performed by Parliament whilstoperating in the special Constituent field of law making. An omission toprovide any quasi-judicial procedure in Article 368, which apparently, fur-nishes a self-contained code, means that no such power was meant to beincluded here at all. Proper exercise of judicial power is inseparable fromappropriate procedure.

Learned counsel supporting the 39th amendment tried tc find themeaning of "constituent power" in theoretical speculations about the mean-ing of "the sovereignty of the people", on the one hand, and the 'sovereigntyof the medieval monarch', on the other, instead of looking io the legislativehistory of the "constituent power". I have, therefore, also referred to someof these theories, and practices from ancient times so as to be able to indicatethe precise significance or relevance of various concepts and decisions placedbefore us. These theories and practices could have only an indirect bearing<m the meaning of the term "constituent power" in Article 368. Ihey aremore germane to a statement of a correct theory of severeignty which under-lies what has been called the "basic structure" of our Constitution.

There are scattered dicta in the judgments of this Court speaking ofthe "sovereignty of the people" which, in my opinion, can only be relatedto the political sovereignty of the people recognised by the preamble to ourConstitution where the people are described as the Constitution makers whogave the Constitution unto themselves. This, however, does not. in myopinion, mean that the people retained unto themselves any residue of legalsovereignty. They did not prescribe, apart from dividing the exercise ofsovereign power roughly between the three organs of the Republic, eachwith its own modus operandi, any other or direct method, such as Initiativeor Referendum, for exercising their politically sovereign power. The viewI have tried to put forward in the foregoing pages is that the people entrustedto the three organs of the Sovereign Democratic Republic they constitutedthe exercise of three aspects of sovereign power on behalf of the people.This seems to me to be the only way of reconciling the idea of a sovereignpeople, in the political sense, and the sovereignty of the Republic represen-ted by a legally supreme constitution, so that the5 "sovereign" powers ofeach of the three organs of the Republic had to be exercised in conformity•with the mandates, both positive and negative, express and implied, of theConstitution. I would prefer to describe this concept as one of the "supre-macy of the Constitution" instead of "sovereignty" of the Constitutionbecause of the theoretical, speculative, and "emotive" clouds which havegathered around the term "sovereignty". **

I have tried to point out that the term sovereignty in its origin is asso-ciated with the actual human rvffer or authority wielding theoretically ab-solute or final powers. Political philosophers are particularly concernedwith the problem of determining the location and manner of exercise of suchpowers if any. Jurists, however, have also occupied themselves with theseproblems partly because constitutional law, as Dicey once pointed out. hassome overlapping territory with the political theory, which underlies it. Some

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Constitutional lawyers such as Ivor Jennings, have said that it is flirtationwith political theory which has brought into the juristic fold a term such as'sovereignty'. On the other hand, political theorists, such as Me Iver haveblamed, for less justly, jurists like Austin for infecting political theory withlegalistic authoritarian notions of sovereignty. Political theorists, in theirattempts to understand and rationalize and sometimes to justify or condemna system are more concerned with the operations of all those socio-economic -cum-political forces which govern society. Law-is, for them, one of theseforces and reflects them. Lawyers have been compelled to 'Flirt' (if I mayemploy the term used by Sir Ivor Jennings with sovereignty, only becausethey have to look for some final authority' which determines the validity ofthe claims' they have to deal with. Political theory, faced with the complexi-ties of modern life, finds location of sovereignty as a power concept tooelusive and difficult a task to be satisfactorily carried out. Some of themiwould like to banish the term to the region of purely moral philosophywhere it could be reserved for such freedom of thought and will and actionas even the most powerful totalitarian State, employing all the techniquesbased on Prof. Pavlov's theories for1 purposes of propaganda, cannot takeaway from the individual. Others find it of use only in International Lawto denote that independence of the national State and the freedom which itclaims and is entitled to from outside interference. Jurists as well as prac-tical lawyers have to be content with finding an ultimate measuring rod ina fundamental law which could test the validity of exercise of every kindof Governmental power. Their quest for certainity is even more pressingand urgent than that of the political theorist. For their purposes, thesupremacy of the Constitution, of which a very vital and necessary part isthe constituent power, is sufficient. Of course, thev have to determine thecontent of "constituent power" itself in the light of all relevant considera-tions which, as I have indicated above, may take us outside the ordinaryrange of law. Nevertheless, our deviation from the orthodox canons ofconstruction and interpretation, when faced with such a problem, must notbe so wide as to rob our method of construction itself of legal propriety orgive rise to the suspicion that we have ourselves clearly trespassed into theterritory of law making. The lines of demarcation, though difficult to drawsometimes, are, nevertheless, there.

I do not think that it is at all helpful to refer to certain authorities ofthis Court which were, rather surprisingly, relied upon by learned councelsupporting the 39th amendment to discover the nature of the "constituentpower" contained in Art. 368. I will content myself by citing a passagefrom the last of these cases relied upon which mentions the earlier casesof this Court also on the effect of a "Firman", in Tilkayat Shri GovindlaljiMaharaj v. State of Raja&hQn and others [1964 (1) S.C.R. p. 561 at 591].Gajendragadkar, J., speaking for this Court said (at p. 591):

"In appreciating the effect of this Firman, it is first necessary to decidewhether the Firman is a law or not., It is a matter of commonknowledge that at the relevant time the Maharana of Udaipur wasan absolute monarch in whom vested all the legislative, judicialand executive powers of the State. In the case of an absoluteRuler like the Maharana of Udaipur, it is difficult to make anydistinction between an executive order issued by him or a legisla-tive command issued by him. Any order, issued by such a Rulerhas the force of law and did! govern, the rights of the partiesaffected thereby. This position is covered by decisions of thisCourt and it has not been disputed before us. Vide Madhctorao


Phalke v. State of Madhya Bharat [(I960) 1 S.C.R. 957], Ammer-wiNisa-Begum v. Mahboob Begum (A.I.R. 1955 S.C. 352), andDirector of Endowments, Government of Hyderabad v. Akram AH(A.I.R. 1956 S.C. 60)."

It is evident, from the quotation, relied upon by the Solicitor-General,that this Court was not deciding whether the Firman was even a "law" inthe sense of a general norm which had to be applied to the decision of cases.It was held that whatever be its juristic character, it had the "force of law"inasmuch as the Ruler of Udaipur was an absolute ruler, who combinedin his person the legislative, the judicial and executive authority of the State.That was the Constitution of Udaipur. The doctrine of separation of powersin such a context, was really irrelevant. Article 368 of our Constitution,however, is not a power acquired by our Republic by State Succession fromthe powers of Indian ruling princes. The legislative history behind it isentirely different.

As a matter of legislative history, we will find the source of the "consti-tuent power" in sections 6 and 8 of the Indian Independence Act passed bythe British Parliament. Section 6, of that Act constituted a "Legislature"for each of two Dominions set up with plenary powers of legislation. Thelegislative powers of the Legislature of each Dominion were so enlargedby section 8 that it could frame the Constitution of the Dominion concerned.This was a transfer of only a legislative power. Section 8 said: "for thepurpose of making provision as to the Constitution of the Dominion thelegislature of the dominion was recognised as the constituent assembly ofthe Dominion". These power were "plenary" in the sense in which thisterm is used in Queen v. Burah, (S.I.A. 178) but they were confined to lawmaking and did not extend to adjudication or decision of individual caseswhich is certainly distinguishable from a law making power. • For purposesother than framing of the Constitution, provisions of the Government ofIndia Act operated until they were repealed and replaced by other relevantprovisions. Such was the process of a legislative succession through whichinstitutional transformation or transition to a new but corresponding set ofinstitutions was brought about. In the eyes of law, this was an evolutionaryprocess through constitutional channels and not a revolutionary break withthe past.

It is true that, in the exercise of the law making constituent power,brought in by section 8 of the Indian Independence Act the legislaturescould be armed with judicial powers as well if appropriate laws were madeto that effect. But, asmo law, either Constitutional or ordinary was passed,preceding 39th amendment, to repeal the Act of 1951 and then to vest ajudicial power in Parliament] so as to enable it to take over and decideelection disputes, itself directly, I do not see how clause (4) of Article329A if it contained certain provisions on the assumption that such a judi-cial power was already there in Parliament, could be valid as a piece ofmere law making. However that Council supporting the 39th amendmenthad submitted that Article 329A (4) evidenced and constituted an exerciseof some "unbroken" or a combined legislative and judicial power—a pro-position for which no precedent of any such consolidated action cf a consti-tuent body was cited from any part of the world. The Firmans of formerIndian ruling princes were hardly suitable or applicable precedents.

An attempt was made to convince us that what may not riave beenotherwise possible for Parliament to do became possible by invoking thepresumed exercise of some judicial power imported by Art. 105 (3) of theConstitution which says:


"105(3) the powers, privileges and immunities of each House ofParliament, and of the members and the committees of each House,shall be such as may from time to time be defined by Parliament

• by law, and, until to be defined, Shall be those of the House ofCommons of the Parliament of the, United Kingdom, and of itsmembers and committees, at the commencement of this Constitu-tion,"

I am unable to see how what was not conferred upon Parliament itself,in its constituent capacity, could be impliedly assumed to be there by virtueof certain "powers, privileges, and immunities" which belong separately toeach House of Parliament. Such a claim could not be based upon what isto be found directly in Article 368. It is sought to be derived from Article105. This reasoning would obviously, conflict with the provisions of Article-329 (b) of the Constitution which indicates that an election dispute can onlybe resolved by an election petition before a forum provided by an ordinaryenactment. Article 329 (bf says:

"329. (b) No election to either House of Parliament or to the House oreithar House of the Legislature of a State shall be called in ques-tion except by an election petition presented to such authority andin such manner as may be provided for by or under any law madeby the appropriate Legislature."

In exercise of its powers under Article 329 (b) our Parliament hadenacted the Act of 1951. The procedure provided by the Act had the bind-ing force of a constitutionally prescribed procedure. It could not be cir-cumvented unless with reference to cases covered by Article 329A (4), ithad been first repealed. Only after such a repeal could any other forum;or procedure be legally adopted. It could not be assumed, by reason ofArticle 105 (3) that the prescribed forum had shifted to Parliament itself.and that Parliament in exercise of its constituent function, had both legis-lated and adjudicated. This is what we were asked to accept.

The well recognised rule of construction of statutes, which must applyto the interpretation of the Constitution as well, is: "Expressio Unins EstExclusio Aherius". From this is derived the subsidiary rule that anexepressly laid down mode of doing something necessarily prohibits thedoing of that thing in any other manner. The broad general principle isthus summarised in Crawford's "Statutory Constructions" (1940) at p. 334:

"Express Mention and Implied Exclusion {Expressio Unius EstExclusio Aherius—As a general rule in the interpretation ofstatutes., the mention of one thing implies the exclusion of anotherthing. It therefore logically follows that if a statute enumerates,the "things upon which it is to operate everything else mustnecessarily, and by implication be excluded from its operationand effect. For instance, if the statute in question enumeratesthe matters over which a court has jurisdiction, no other mattersmay be included. Similarly, where a statute forbids the perfor-mance of certain things only those things expressly mentioned areforbidden. So also, if the statute directs that certain acts shallbe done in a specified manner, or by certain person their perfor-mance in any other manner than that specified or by any otherperson than one of those named, is impliedly prohibited."

24—345 Elec. Com./ND/81

358 SMT. INDIRA XEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

It is interesting to note that in the Australian Constitution, whemthere is Article 49, using language very similar to that of Article 105(3)of our Constitution, there is aiso a separate but differently cast Article 47of the Australian Constitution corresponding to Article 329(6) of ourConstitution. This article runs as follows :

"Article 47. Until the Parliament otherwise provides any questionrespecting the qualification of a Senator or of a Member of theHouse of Representatives, or respecting a vacancy in eitherHouse of the Parliament, any question of -a disputed election toeither House, shall be determined by the House in which thequestion arises."

What is separately, expressly, and especially provided for byArticle 329(b) must necessarily fall outside the purview of Article 105(3)en the principle stated above. Moreover, Article 105 (3) contafned atemporary provision until other provision was made by Parliament inthat behalf. Appropriate provisions were enacted by the Act of 1951 incompliance with Article 329(6) because that was the proper Article forit. It would be idle to contend that these provisions suddenly lapsed orceased to exist as soon as Parliament took up consideration of the issuesand the grounds of the decision on them by the High Court to whichreference is made in Article 329A(4). Again a purported exercise ofpower, in enacting Article 329A(4) could only be a law making powerand not any other power which could conceivably fall under Article 105,sub-Article (3). Nevertheless, it was suggested, by copious references tothe origin of the power of the House of Common to decide disputesrelating to elections, that such a power exists in each House of ourParliament as its inherent power. Such an argument completely overlooksthat, quite apart from the great difference made by providing both theforum and the procedure for deciding election disputes indicated byArticle 329(6) of our Constitution, Article 105(3) itself could only referto such powers as were still exercisable by the House of Commons at thetime when our Constitution was passed. Long before that, the House ofCommons in England had ceased to decide election disputes itself. It hadtransferred this power to Courts by statute and has not resumed i t In fact,the law enacted in the Representation of People Act, 1949 by the BritishParliament confirmed this transfer or delegation of power. Section 107of that Act makes it clear like Article 329(6) of our constitution, that thestatutory remedies are the only ones open for election disputes.

The reasons why the House of Commons itself saw the need forentrusting to a rota of High Court Judges the jurisdiction at one timeexercised by it directly to determine its election disputes, is found thusstated by BLACKSTONE, quoting Erskine May's "Parliamentary Practiceand Procedure" (at p. 153—155);

"For a considerable time after the house, had obtained this jurisdiction,controverted elections were tried by committees specially nomi-nated, composed of privy councillors and burgesses, well qualifiedfor the duties entrusted to them. But after 3672 it became anopen committee, in which all who came had voices ; and atlength a hearing at the bar of the House was considered preferableto an inquiry by a committee. Here again, to use the words ofSir Erskine May, "the partiality and injustice of the judges wassoon notorious. Parties tried their strength the friends of rival

E.L.R.] SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN 359

\ candidates canvassed and manoeuvred, and seats corruptly gainedwere as corruptly protected or voted away. Such were the resultsof the usurpation of judicial functions by a popular body".

•

In order to remedy, if possible, these unquestionable evils, the statute10 Geo. Ill c. 16 called from its author the Grenville Act waspassed in 1770 and the trial of election petitions transferred to aselect committee of thirteen members which it was thought wouldbe a court independent of the house, though composed of its ownmembers. For a time there was a marked improvement in thedecision *of controverted elections. But too soon it becameevident that corruption and party spirit had not been overcome.Crowds now attended the ballot as they had (previously come tothe vote:—not to secure justice 'but to aid their own politicalfriends'. The party, whether of the petitioner or sitting member,which attended in the greatest number inevitably had the numericalmajority of names drawn for the committee, and from this list,the petitioner and sitting member struck out alternately one nameuntil the committee was reduced to thirteen; the majority ofthe house was necessarily a majority of the committee. The resultit was not difficult to foresee. Though the members 'were swornto do justice between the rival candidates, yet the circumstancesunder which they were notoriously chosen, their own party-bias,and a lax conventional morality—favoured by the obscurity andinconsistencies of the election law, and by the conflicting decisionsof incapable tribunals, led to this equivocal result; that the rightwas generally discovered to be on the side of the candidate whoprofessed the same political opinions as the majority of thecommittee'.

'By these means the majority of the house continued, with less direct-ness and certainty, and perhaps with less open scandal, tonominate their own members as they had done before the GrenvilleAct. And for half a century, this system with slight variationsof procedure, was suffered to prevail. In 1939, however, the ballotwas at length superseded by Sir Robert Peel's Act Committeeswere reduced to six members and nominated by an impartialbody—the General Committee of Elections. The same principleof selection was adhered to in later Acts, with additional securitiesfor impartiality, and the committee was finally reduced to fivemembers. The evil was thus greatly diminished but still thesinister influence of party was not wholly overcome. In thenomination of election committees, one party or the other neces-sarily had a majority of one, and though these tribunalsundoubtedly became for more able and judicial their constitutionand proceedings often exposed them to imputation of politicalbias.'

At length by the statute 31 and 32 Viet. c. 125, the trial of electionpetitions was transferred to certain of the puisne judges atWestminster who are selected annually to form a rota for thisspecific purpose; and who inquire upon the spot in open courtinto the allegations of a petitioner, either claiming a seat, oralleging an undue return or election. The decision of the Judgewho has power to reserve his judgment until he has consulted the

3 6 0 SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN [VOL. LVfC

Common Pleas division of the High Court, in which these procee-dings are instituted, is final to all intents and purposes; the Houseof Commons being bound to give the necessary directions forconfirming or altering the returns or for issuing a writ for a newelection, or carrying such determination into execution as circum-stances may require". And this abstract of the proceedings atelections of knights, citizens, and burgesses, concludes our inquiriesinto the laws and customs more peculiarly relative to the Houseof Commons."

I do not think that it is possible to contend, by resorting to someconcept of a succession to the powers of the medieval "High Court ofParliament" in England, that a judicial power also devolved upon ourParliament through the Constituent Assembly, mentioned in Sec. 8 of theIndian Independence Act of 1947. As already indicated by me, theConstituent Assembly was invested with law making and not judicial powers.Whatever judicial power may have been possessed once by English King,sitting in Parliament, constituting the highest Court of the realm in medievalEngland, have devolved solely on the House of Lords as the final court ofappeal in England. "King in Parliament" had ceased to exercise judicialpowers in any other way long before 1950. And the House of Commonshad certainly not exercised a judicial power as a successor to the one timejurisdiction of the "King in Parliament", with the possible exception or thepower to punish for its contempts. I use the qualifying word "possible"because the more correct view of it today may be that this power is also,as it is considered in America, a mere incident of legislative power, necessaryfor the due performance of law making functions and not an "inheritance".

In Erskine May's Parliamentary Practice (18th Edn.), after citingthe opinions of Judges to whom a reference was made by the House ofLords in Thorpe's case (1451), that "Lex Parliament" seemed something asstrange and peculiar as foreign law is for Common Law Courts, it wasexplained (at page 187) :

"These views belonged to a time when the distinction between thejudicial and legislative functions of Parliament was undrawn oronly beginning to be drawn, and when the separation of the Lordsfrom the Commons was much less complete than it was in theseventeenth century. Views about the High Court of Parliamentand its powers which were becoming antiquated in the time ofCoke, continued to be repeated far into the eighteenth century,although after the restoration principles began to be laid downwhich were more in accord with the facts of the modern constitu-tion. But much confusion remained which was not diminishedby the use of the phrase 'privilege of Parliament'. This onlymeans a body of rights common to both Houses, but it suggestsjoint action (or enforcement) by both-Houses, as in legislation,whereas from Ferrers' case in Henry VIII's reign in 1543 eachHouse enforced its own privileges separately.

Three notions arise from this confusion of thought :1. That the courts being inferior to the High Court of Parliament

cannot call in question the decision of either House on a matterof privilege.

2. That the lex et consuetudo Parliamenti is a separate law andtherefore unknown to the courts.


3. That a Resolution of either House declaratory of privilege is ajudicial precedent binding on the courts."

The confusions mentioned above misled some people in this countrydue to the provisions of Article 194(3) of our Constitution on the questionwhether a House of a Legislature had not only the power to punish acitizen for contempt but also to exercise what is really a judicial power tointerpret and determine the ambit of its own jurisdiction. GajendragadkarC. J., speaking for this Court in Special Reference no. 1 of 1964 (Supra),rejected this claim and explained the English law on the subject. The learn-ed Chief Justice pointed out the incidental character of any claim to apower, privilege, or immunity which could be covered by Article 194(3), aprovision identically similar to Art. 105(3). He pointed out that the cnlyexception to this rule was the power to punish for its own contempt which,since the decision of Privy Council in Kielley v. Carson, 4 Moore P. C. 63,could be thought of as power of thei House of Commons even acquired asa kind of "inheritance" from the powers once possessed by the High Courtof Parliament in England. But, as all judicial or quasi-judicial power is,under our Constitution, expressly made exercisable under the supervisionof the judicial organs of the State, itl was held that a decision about theexistence of the power to punish for contempt, on the facts of a particularcase, is vested in the High Count. Even Sarkar, J., in his dissenting mino-rity opinion, said (at p7 513). "I do not think that the House of Com-mons was itself ever a Court. The history of that House does not supportsuch a contention." The result is similar to that in England where Courtsdo determine the orbiti of a claim to a power as a Parliamentary preserve,on the facts of a case, although, once it is established that the claim is toa power confined to its proper sphere, they will not decide a mere ques-tion of its proper exercise.

Whatever view one may take of any other powers of Parliament, byreason of Art, 105(3) of the Constitution, I am unable to see how exerciseof the jurisdiction to determine an election dispute, which was, in accordancewith Article 329(6), already vested in the High Court by the Act of 1951for all elections to the House of the People, could not only be taken awayby a Constitutional amendment, purporting to repeal retrospectively theprovisions of the Act of 1951, a piece of ordinary legislation, in their appli-cation to a particular class of cases, but at the same time, a declarationgiven of the rights of the parties to a judgment, without first performing ajudicial function also which was no! included in the "constituent" or anyother law making power.

The question was not clearly raised before us whether a Constitutionalamendment could partially repeal the provisions of an ordinary piece oflegislation, that is to say, the Act of 1951, in so far as its application to acertain class of cases is concerned. One of the submissions of the learnedCounsel for the election petitioner, however, was that, inasmuch as theConstitution lays down the norms to which ordinary legislation must con-form, its proper sphere of operation is different from that of ordinary legisla-tion which takes place under the provisions of Articles 245 to 255 ofthe Constitution. The argument seemed to be, that, if ordinary law makingand constitution making took place in different orbits or on different planes

. of law making power what could be done by one method was necessarilyprohibited by the other. Learned Counsel relied upon a number of passage-from the judgment in Kesvananda Bharii's case (supra), and, in particular,on what Ray, J., (as he then was) said (at p. 386):


"The constituent power is sui generis. The majority view in GolakNath case that Article 13(2) prevails over Article 368 was on thebasis that there was no distinction between constituent and legisla-tive power and an amendment of the Constitution was law andthat such law attracted the opening words of Article 245 which inits turn attracted the provisions of Article 13(2). Parliament tooknotice of the two conflicting views which had been taken of theunamended Article 368, took notice of the fact that the preponder-ing judicial opinion, namely, the decision in Shankari Prasad caseSajjan Singh case and the minority views of five learned Judgesin Golak Nath case were in favour of the view that Article 368contained the power of amendment and that power was the consti-tuent power belonging to Parliament. Wanchoo, J. rightly saidin Golak Nath case that the power under Article 368 is a consti-tuent power to change the fundamental law that is to say, theConstitution and is, distinct) from ordinary legislative power. Solong as this distinction is kept in mind Parliament will have powerunder Artcle 368 to amend the Constitution and what Parliamentdoes under Article 368 is not/ ordinary law making which is subjectto Article 13(2) or any other Article of the Constitution. Thisview of Wanchoo, J. was adopted by Parliament in the Constitu-tion 24th Amendment Act which made explicit that under Arti-cle 368 Parliament has the constituent power to amend thisConstitution."

On the other hand, learned Counsel defending the 39th Amendmentrelied on a number of passages from various judgments, including mine, inKesvananda Bharti's case (supra), indicating that at least the minority viewthere was that the power of amendment contained in Article 368 was onlylimited by the procedure laid down in Article 368(2) of the Constitution andnothing else. It is true that this is what was emphasized by several learnedJudges, including myself, in dealing with a case where the real question waswhether the constituent power embraced an amendment of the Constitutionin such a way as to take away fundamental rights. But, neither the ques-tion whether "constituent power" itself contained judicial power within itsfold nor the question whether "constituent power" operated on a plane orin a sphere which excluded altogether what could be done through ordinarylegislation were under consideration in Kesvananda's case (supra). Somepassages were cited from my judgment in that case indicating that the consti-tuent plane of basic changes excluded the ordinary law making planeof legislation, the two belonging, so to speak, to different spheres or orbitsof operation. I think, I had only "cited Prof. Ernest Barker's statementsof his theory some of which could convey that sense. But, I had not com-mitted myself to a view on the question whether there was a limit on thesubject-matter of constituent law making.

It could be and has been argued, not without force, that there are nolegal limitations upon the subject-matter which may be considered fit forinclusion or incorporation in a constitution. This is left to the good senssof the Constitution makers. Constitutions differ greatly in this respect (See :Wheare's "Modern Constitution" p. 49 to 51). What may be the ideal,from this point of view, is not always the actual. Reference was also madein support of this submission to Rottschaefer on "Constitutional Law" (1939edn., p. 10). It is not necessary to pursue this question any further here.

I had said, in Kesvananda's case (supra) after dealing with amendingpower in Article 368, on the assumption that it was an exercise of a"sovereign power" (at p. 870):


"No doubt the judicial organ has to decide the question of theof a sovereign authority as well as that of other authorities in casesof dispute. But, when these authorities act within these limits, itcannot interfere."

In other words, I look upon a "sovereign power" itself, under theConstitution, as limited by the supremacy of the Constitution.

If the constitutional provisions compel us to hold, as I think they do,that no form of judicial or quasi-judicial power is included in the "consti-tuent power", contained in Article 368 of the Constitution, no further ques-tion need really be considered by us, if we were 10 hold that the insertionof clause (4) in Article 329A necessarily involved, as a condition precedentto the making of the declaration found at the end of it, the performanceof a quasi-judicial or judicial function. But, I do not think that we couldgo so far as that legislative action can sometimes be made to serve as anunobjectionable substitute for what could and should, strictly and properly,be done judicially. But, could this be done here without legally m-surmountabe difficulties ?

The Act of 1951, enacted under the provisions of Article 329(6) of theConstitution, provided a procedure which could not be circumvented. Thisprocedure was certainly applicable until 10th August;, 1975 when the 39thAmendment received Presidential assent. Rights of appeal under sec-tion 116A of the Act having been invoked by the Original Respondent aswell ,as by the election petitioner, and the operation of the High Court'sorder having been suspended, the position was, in the eyes of law, thatthe election dispute was continued by a proceeding, exclusively prescribedby Article 329(6) for the resolution of the dispute, pending in this Court.I do not think, that despite the impression created by the terms of the decla-ration at the end of clause (4) of Article 329A and the opening state-ment of the counsel for the original respondent, we can assume that Parlia-ment took over the case into its own hands to decide it and to incorporatethe results in the form of Article 329A(4) so that this may take the placeof a possible judgment of this Court. Parliament could not be deemed tobe unaware of the bar created by Article 329(&) and the 1951 Act.

At one stage, counsel supporting the 39th Amendment sa;d that thenorms of the Act of 1951, together with the amendment of the Act in 1974and the very recent ones of 1975, must have been present in the minds ofmembers of Parliament and applied to the facts of the case. Such a con-tention, apart from overlooking the effect of the bar of Article 329(6), whichoperated against the case being taken up in Parliament directly until at leastAugust 10, 1975, just as section 107 of the British Representation of PeopleAct, 1949, operates against the adoption of such a course in England, over-looked the legal effect of the deeming provision which, if valid, would repelsuch a submission of counsel supporting the 39th Amendment. The deem-ing provision appeared to be quite sweeping. It; said:

"No law made by Parliament before the commencement of the Consti-tution (Thirtyninth Amendment) Act, 1975, in so far as it relatesto election petitions and matters connected therewith, shall applyor shall be deemed ever to have applied to or in relation to theelection of any such person as is referred to in clause (1) to eitherHouse of Parliament."


The effect of such a provision is thus stated, in the oft quoted passagefrom East End Dwellings Co. Ltd. v. Fimbury Borough CoumU ;<1952) AC109]:

"If you are bidden to treat an imaginary state of affair? as real, youmust surely, unless prohibited from doing so, also imagine as realthe consequences and incidents which, if the putative state of affairshad in fact existed, must inevitably have flowed from or accom-panied it The statute says that you must imaginea certain state of affairs; it does not say that having done so, youmust cause or permit your imagination to boggle when it comesto the inevitable corollaries of that state of affairs."

When the effect of Article 329(6) and of the deeming provision waspointed out to learned counsel supporting the 4th clause of 329A, they tookup the position that Parliament must have applied its own norms. We,however, do not know at all and cannot guess what matters were consideredor the norms applied by Parliament. No speeches made in Parliament onthe proposed 39th Amendment were cited before us by either side. We onlyknow that the Objects and Reasons of the 39th Amendment contain thefollowing statements to show us why Article 329A(4) was believed to benecessary:

"Article 71 of the Constitution provides that dispu'ei arising out ofthe election of the President or Vice-President shall be decidedby the Supreme Court. The same article provides that mattersrelating to their election shall be regulated by a parliamentarylaw. So far as the Prime Minister and the Speaker are concern-ed, matters relating to their election are regulated by the provi-sions of the Representation of the People Act, 1951. Under thisAct the High Court has jurisdiction to try an election petitionpresented against either of them.

2. The President, the Vice-President, the Prime Minister and theSpeaker are holders of high offices. The President is not answer-able to a court of law for anything done, while in office, in theexercise of his powers. A fortiori matters relating to his electionshould not be brought before a court of law but should be en-trusted to a forum other than a court. The iame reasoning ap-plies equally to the incumbents of the office of Vice-President,Prime Minister and Speaker. It is accordingly proposed to pro-vide that disputes relating to the election of the President andVice-President shall be determined by a forum as may be deter-mined by a parliamentary law. Similar provision is proposedto be made in the case of the election to either House of Parlia-ment or, as the case may be, to the House of the People of aperson holding the office of Prime Minister or the Speaker. Itis further proposed to render pending proceedings in respect cfsuch election under the existing law null and void. The Billalso provides that the parliamentary law creating a new forumfor trial of election matters relating to the incumbents of thehigh offices above-mentioned shall not be called in question inany court."

T think that this Statement of Objects and Reasons and o:her reasonsmentioned above by me lend support: to the submission, to which Mr.Kaushal confined himself whilst other counsel supporting the validity of


329A(4) offered it only as an alternative submission. This was that thewhole procedure adopted and needed being a law making procedure andnothing more there was no need to look for norms or for law appliedas no judicial or quasi-judicial proceeding was involved. This approachcertainly avoids the extraordinary anomalies and results involved in iheproposition that "constituent power" embraces some indefinable or "un-broken" power to override laws and to withdraw and decide all disputes,particularly in election matters, in Parliament itself. As already indicated,there is no provision anywhere for the exercise of overriding judicial orquasi-judicial powers by Parliament. It is difficult to conceive a casebeing considered by Parliament and the ratifying Legislatures as a caseon trial. Parliament could not, therefore, be assumed tio have withdrawnand then to have decided a particular case in a particular way by applyingits own norms. It is presumed to know the law. Ostensibly, Article329A(4) is part of an amendment of the Constitution for the purposesfound in the Statement of Objects and Reasons. Only the declarationgiven at the end of it suggests ithat, in the course of i\ the effect upon thecase before us was considered and dealt with.

If Article 329A(4) constituted only a piece of purported law making,the next question, which deserves very serious consideration by us, is whe-ther such purported law making is not fully covered by the undoubt-ed law making power of Parliament- to make law prospectively as wellas retrospectively, inter alia, to get rid of the legal effect! or result of ajudgment considered erroneous by it or to retrospectively validate an elec-tion it considers valid whatever may be its reasons for reaching this conclu-sion. I will answer this question after considering the relevant case lawcited on the subject.

A number of cases have been cited before us; some on retrospectivevalidation of taxing provisions, by removing defects, others on removalof the basis of or grounds of decisions given by Courts making their judg-ments ineffective, others affecting the jurisdiction of Courts in cases pend-ing, either in the original Courts or in Courts of Appeal, so as to renderproceedings infructuous, and still others curing legally defective appoint-ments or elections. Tt is not necessary to discuss these cases separately

' and individually as the principles laid down there are well recognised, 1will be content with mentioning the cases cited. They were: M. P, V.Sundararamier & Co. v. The State of Andhra Pradesh and anoihcr (i 958S. C. R. 1422); Sh'ee Vinod Kumar and others v. State of Hi martial Pra-desh [1959 Suppl (1) SCR 160]; Jadab Singh and others v. The HimachalPradesh Administration \and another [1960 (3) SCR 755]; Udai RamShartna and others etc. v. Union of India and others [1968 (3) SCR 41];Rustom Cavasjee Cooper v. Union of India [1970 (3) SCR 530]; Jagaiviathetc. etc. v. Authorised Officer, Land Reforms and others etc. [1972 (1)SCR 1055]; Khyerbari Tea Co. Ltd. and another v. The State of As'~a;n[1964 (5) SCR 975]; Messrs. Tirath Ram Rajindra Nath, Lucknow v. Stateof U P. and another (AIR 1973 SC 405); Krishna Chandra Gangcpadhyayaetc. v The Union of India and others (AIR 1975 SC 1389); Pandia Nadarand others v. The State of Tamil Nadu [1974 (2) SCC 5391; State of Orissav. B. K. Base [1962 Suppl. (2) SCR 380].

Cases were also cited where rights having been altered during: thependency of proceedings, Courts had to give effect to the rights as, altered,and judgments already given on the sitrength of the previous law had ceas-ed to have a, binding force as res judicata between parties or had to be setaside where appeals against them were pending. These were: State of


U. P. v. Raja Anand Brahma Shah [1967 (1) SCC 362]; Shri Prithvi CottonMills Ltd. and another v. Broach Borough Municipality and others [1970(1) SCR 388 at 392]; Janapada Sabha, Chhindwara etc. v. The CentralProvinces Syndicate Ltd. and another etc. [1970 (3) SCR 745]; MunicipalCorporation of the City of Ahmedabad etc, v. New Showck Spg. and Wvg.Co. Ltd. etc. [1971 (,1) SCR 288]; State of Tamil Nadu and another v. M. R.Gounder and another (AIR 1971 SC 231); Amarjit Kaur and others v.Pritam Singh and others (AIR 1974 SC 2068); Qudrat Ullah v. MunicipalBoard, Bareilly (AIR 1974 SC 396).

Cases were also cited of the exercise of Constitutional power ofamendment by placing Acts in the 9th Schedule, under the provisions of-Article 3IB of the Constitution, such as Jagannath etc. etc. v. AuthorisedOfficer, Land Reforms and others^ etc. (supra) so that Acts so included inthe 9th Schedule were immune from attack on the ground of alleged viola-tion of any fundamental rights. It is not necessary to cite them as thisis now a well recognised constitutional device whose validity has been up-held by this Court in Kesvananda Bhafiti's case (supra).

Our attention was especially invited to passages from Udai RamSharma and other's etc. v. Union of India and others (supra), where it wassaid (at page 54):

"In our opinion no useful purpose will be served by referring to theclear demarcation between the judicial .powers and legislativepowers in America and attempt to engraft the said principle inthe working of our Constitution. This development of the law,as pointed out in A. K. Gopalan v. State (1950 S.C.R, 88 at 198)was due to historical reasons."

After that, the following passage from the judgment of Das, J., inA K. Gopalan's case was quoted (at page 55):

"the Supreme Court of the United States, under the leadership ofChief Justice Marshall, assumed the power to declare any law un-constitutional on the ground of iUs not being in 'due process oflaw.' It is thus that the Supreme Court established its ownsupremacy over the executive and the Congress. In India theposition of the judiciary is somewhere in between the Courts inEngland and the United States. While in the main leaving ourParliament and the State Legislatures supreme in their respectivelegislative fields, our Constitution has, by some of the articles,put upon the Legislature certain specified limitationsOur Constitution, unlike the English Constitution, recognises theCourt's supremacy over the legislative authority, but such supre-macy is a very limited one, for it is confined to the field where»he legislative power is circumscribed by limitations but uponit by the Constitution itself. Within this restricted field theCourt may, on a scrutiny of the law made by the Legislature,'declare it void if it is found to have transgressed the constitutionallimitations."

In Udai Ram Sharma's case (supra), the following passage fromWilloughby's Constitution of the United States, Second Edition, Vol. 3,was also cited:

"If the Legislature would prescribe a different rule for the futurefrom that which the Courts enforce, it must be done by statute,


and cannot be done by a mandate to the courts which leavesthe law unchanged, but seeks to compel the courts to construeand apply it not according to the judicial, but according to thelegislative judgment If the Legislature cannot thus in-directly control the action of the courts, by requiring of them aconstruction of the law according to its own views, it is veryplain it cannot do so directly, by setting aside their judgments,compelling them to grant new trials, ordering the discharge ofoffenders, or directing what particular steps shall be taken in theprogress of a judicial inquiry."

Willoughby's statement of law in the United States of America show-ing that retroactive legislation which does not impair vested or substantialrights or constitutional prohibitions, is permissible and his conclusion, rely-ing on Cooley's "Constitutional Limitations", was also quoted:

"The Legislature does, or may, prescribe the rules under which thejudicial power is exercised by the courts; and ingoing so it maydispense with any of those formalities which, are not essential t©the jurisdiction of tjie court, and whatever it may dispense witkby statute anterior to the proceedings, we believe it may alsodispense with by statute after the proceedings have been taken,if tine court has failed to observe any of those formalities. Batit would not be competent for the Legislature to authorize acourt to proceed and adjudicate upon the rights of parties, with-out giving Jjhem an opportunity to be heard before it and, for thesame reason it would be incompetent for it, by retrospectivelegislation, to make valid any proceedings. which had been hadin the courts, but which were void for want of jurisdiction overthe parties."

In Udai Ram Sharmds case (supra) an argument;, based on some ob-servations in B. C. Ghose v. King Emperor (1944 F.C.R. 295) was that theprovisions of an amending Act amounted to passing a decree. But, this>Court repelled this argument relying on principles laid down in Q. v.Burah (supra):

"If what has been done is legislation, within the general scope of tiheaffirmative words which give the power, and if it violates no ex-press condition or restriction by which that power is limited (inwhich category would, of course, be included any Act of theImperial Parliament at variance with it), it is not for any Courtof Justice to inquire further, or to enlarge constructively thoseconditions and restrictions."

A case strongly relied upon by learned Counsel supporting the vali-dity of Article 329A(a) was: Kanta Kathuria v Manak Chand Surana[1970 (2) SCR 935]. In this case, decided by five Judges of this Court,there was unanimity on tihe conclusion that the State Legislature hadpower to retrospectively remove the disqualification of a candidate. Thefollowing quotation from the judgment (at page 851) shows the reasoningadopted: r

"Mr, Chagla, learned Counsel for the respondent, contents that theRajasthan State Legislature was not competent 'to declare retro-spectively' under Art. 191(l)(a) of the Constitution. It seems to-us that there is no force in this contention. It has been held in

SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVII

numerous cases by this Court thafl the State Legislatures andParliament can legislate retrospectively subject to the provisionsof the Constitution. Apart from the question of fundamentalrights, no express restriction has been placed on the power of'the Legislature of the State, and We are unable to imply, in thecontext, any restriction. Practice of the British Parliament doesnot oblige us to place any implied restriction. We notice thatthe British Parliament in one case validated the election; (ErskineMay's Treatise on the Law, Privileges, Proceedings and Usage ofParliament— Seventeenth (1964) Edition)—

"After the General Election of 1945 it was found that tihe persons elect-ed for the Coatbridge Division of Lanark and the Spring-bourn Division of Glassgow were disqualified at the time of theirelection because they were members of tribunals appointed by tiheMinister under the Rent of Furnished Houses Control (Scotland)Act, 1943, which entitled them to a small fee in respect of attend-ance atl a Tribunal. A Select Committee reported that the dis-qualification was incurred inadvertently, and in accordance withtheir recommendation the Coatbridge and Springbourn Elections(Validation) Bill was introduced to validate the irregular elections[(H C. Deb (1945-46) 414, C. 564-6)], See also H. C. 3 (1945-46); ibid, 71 (1945-46) arid ibid 92 (1945-46)".

W%have also noticed two earlier instances of retrospective legislation,e.g. The House of Commons (Disqualification) Act, 1813 (Hals-bury Statutes of England, p. 467) and Sec. 2 of the Re-electionof Ministers Act, 1919 {ibid, p. 515).

Great stress was laid on the word 'declared' in Art. 19, (l)(a), but weare unable to imply any limitation on the powers of the Legisla-ture from this word. Declaration can be made effective as froman earlier date.

The apprehension that it may not be a healthy practice and this powermight be abused in a particular case are again no grounds forlimiting the power of Uhe State Legislature."

Another case on which a great deal of reliance was placed by Mr.A. K. Sen, was the case of the validation of the elections of John ClarkeGeorge, Esquire, and Sir Roland Jennings, Knight, (1955 Law ReportsStatutes 4 Eliz. 2) by the British Parliament. Here, the two gentlemennamed above were "discharged, freed and indemnified from all penalconsequences whatsoever incurred by them respectively by. sitting orvoting as Members of the Commons House of Parliament while holdingtheir said offices". It was also declared that they "shall be deemed notto have been incapable of being elected, members of the Commons Houset>f Parliament or to have been or to be incapable of sitting or voting asmembers thereof, by reasons only of having at any time before the pass-ing of this Act! held office":

"(fl) in the case of the said John Clarke George, as Director appoint-ed by the Minister of Works of Scottish Slate Industries Limited,

(b) in the case of the said Sir Roland Jennings, as Approved Auditorappointed under the Industrial and Provident Societies Act, 1893,and the Friendly Societies Act, 1896."


Learned Counsel for the election petitioner replied that it is noticeablethat no English case could be cited where any attempt was made by theBritish Parliament to circumvent section 107 of the Representation of thePeople Act, 1949, which lays down:

"Section 107. Method of questioning Parliamentary election.(1) No parliamentary election and no return of Parliament shall be

questioned except by a petition complaining of an undue electionor undue return (hereinafter referred to as parliamentary electionpetition) presented in accordance with this Part of this Act.

<I2) A petition complaining of no return shall be deemed to be aparliamentary election petition and the High Court may makesuch order thereon as they think expedient for compelling a re-turn to be made or may allow the petition to be heard by anelection court as provided with respect to ordinary electionpetitions".

He also submitted that in none of the cases of validation, was anyelection dispute shown to be pending. No judgment was actually set asidein contravention of the binding constitutionally prescribed procedure todecide such disputes. He submitted that, in the case of an election toa Parliamentary seat in this country, this could be done by Parliamentitself only after first repealing the application of the 1951 Act and amend-ing Article 329 (b) in such a way as to vest the power in itself to decidethe dispute.

Learned Counsel, for the election petitioner, relied upon the followingstatement in the American Jurisprudence, 2nd Edn., Vol. 46 at page 318:

"The general rule is that the legislature may not destroy, annul, setaside, vacate; reserve, modify, or impair the final judgment of acourt of competent jurisdiction, so as to take away private rightswhich have become vested by the judgment. A statute attemp'-ing to do so has been held unconstitutional as an attempt on t iepart of the legislature to exercise judicial power, and as a viola-tion of the constitutional guarantee of due process of law. Thelegislature is not only prohibited from reopening cases previouslydecided by the courts, but is also forbidden to affect the inherentattributes of a judgment. That the statute is under the guise ofan act affecting remedies does not alter the rule".

On the other hand, learned Counsel supporting the validity of Arti-cle 329A(4) relied on the following passage:

"It is Worthy of notice, however, that there are cases in which judg-ments requiring acts to be done in the future may validly beaffected by subsequent legislation making illegal that which thejudgment found to be legal, or making legal that which thejudgment found to be illegal."

They also pointed out:"With respect to legislative interference with a judgment, a distinc-

tion has been made betweejn public and private rights underwhich distinction a statute may be valid even though it rendersineffective a judgment concerning a Public right. Even after apublic right has been establish by the judgment of the court,it may be annulled by subsequent legislation".

370 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. *tVII

It is contended that the election of a candidate is the result of theexercise of their rights of voting by the electorate. - An election resultsfrom public action and produces a "public right" inasmuch as the electo-rate and the public become interested parties acquiring the right to be re-presented by the elected candidate. The right to challenge that electionis a statutory right. What the statute gives can be taken away by statute.The grounds for challenging ,the election could also be altered. JJo one,it was urged, could be heard to say that he had any vested or inherentright to challenge an election. It was contended that once the applicabi-lity of all law previous to the 39th amendment to the class dealt with by329-A (4) was removed respectively, the resulting legislative declarationfollowed automatically even if it has not been inserted. Its inclusion wasa; superfluity. Article 329-A (4) was said to be merely incidental andconsequential to what was done by earlier clauses (1) to (3). It is diffi-cult to see how Art. 329-A (4) which relates" to what was past could beaccidental or consequential to what was intended to be done in future.Moreover, more serious difficulties, dealt with below, are found here thanthose which could arise in ordinary cases of retroactive validation.

Learned Counsel for the election petitioner relied on Don fohn FrancisDouglas Liyanaqe & Others versus The Queen [1967 (Vol. 1) A. C. 259]where the Privy Council, considered the validity of the Criminal Law Spe-cial Amendment Act of 1962, passed by the Parliament of Ceylon, whichhad purported to legalise ex gq$t facto the detention of persons for havingcommitted offences against the State, by widening the class of offencesfor which trial, without jury, by nominated judges could be ordered. Thescope of the offence of waging war against the Queen was widened andnew powers to deal with offenders wer§ given and additional penaltieswere prescribed. It was held that although, no fundamental principlesof justice could be said to have been violated by the Act, yet, the Act of1962 and an amending Act of 1965, were invalid on the ground summaris-ed in the head-note as follows (at p. 260):

"That the Acts, directed as they were :fa the trial-of particular prisonerscharged with particular offences' on .a particular occasion,involved a usurpation and infringement by the legislature of judi-cial powers inconsistent with the written Constitution of Ceylon,which, while noti in terms vesting judicial functions in the judi-ciary, manifested an intention to secure in the judiciary a freedomfrom political, legislative and executive control and, in effect, leftuntouched the judicial system established by the Character ofJustice, 1833. The silence of the Constitution as to the Vestingof judicial power was consistent with its remaining where it was.and inconsistent with any intention that it should pass to or beshared by the executive or the legislature. The Acts were ac-cordingly ultra, vires and void, and the convictions could notstand".

If the constituent bodies, faken separately or together, could be legallysovereign, in the" same way as the British .Parliament is, the Consti-tutional validity of no amendment could be called in question before us.But, as it is well established that it is the ConstituHion and not the consti-tuent power which is Supreme here, in the sense that the Constitutionality,of the Constitution cannot be called in question before us, but the exerciseof the constituent power can be, we have to judge the validity of exerciseof constituent power by testing it on the anvil of constitutional provisions.According to the majority view in Kesavanandas case (supra) we can findthe test primarily in the Preamble to our-Constitutionl

,3»E.L.lt.j SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 371

A point emphasized by J. C. G?ay (See: "Nature & Sources of Law"p. 96) is that unless and until Courts have declared and recognised a lawas enforcible it is not law at all. Kelsen (See: "General Theory of Law &State" p. 150) finds Grays views to be extreme. Courts however, have totest the legality of laws, whether jurporting to be ordinary or constitutionalby the norms laid down in the Constitution. This follows from the Supre-macy of the Constitution. I mention this here in answer to one of thequestions seti out much earlier: Does the "basic structure" of the Consti-tution test only the validity of a constitutional ajnendment or also ordinarylaws? I think it does both because ordinary law making itself cannotgo beyond the range of constituent power. A3 this stage, we are onlyconcerned with a purported constitutional amendment. According to themajority view in Ke$avananda Bhatitis case, the preamble furnishes :heyard stick to be applied even to constitutional amendments.

Learned Counsel for the election petitioner has strongly relied uponthe very first purpose of the Constitution stated in the preamble to beJustice (with a capital "J") which includes "political justice" His con-tention is that, if a majority party is to virtually acn as the judge in an elec-tion dispute between itself and minority parties whose cause, accordingto the learned Counsel, the' election petitioner represents, it would be aplain denial of "political" justice. I do not know why this questionshould be termed as one of "political justice" and not of plain and simplefelementary justice except that tihe contending parties represent politicalcauses which are, for purposes of plain and simple justice with which weare really concerned, irrelevant. We are not asked to judge a politicalissue directly as to who should be the Prime Minister of this country... Weare only asked to hold that even a constitutional amendment, when madetHy Members of a majority party to enforce their own views of what ispolitically and legally right, as against the views on these matters of mino-rity parties, when the representatives of the minority parties allege amisuse of constitutional powers by a deviation from a constitutionally laiddown purpose, such a legal question of fact and law should be capable oftrial and decision "by an independent authority on such exclusively legalgrounds as may be open. That is the simple principle on which learnedCounsel for the election petitioner rests his case, irrespective of the rightsand wrongs of the merits of his clients case—and, I have found itimpossible to decide it, as I have decided it against the election petitioner,without going into facts and merits of the appeals—for the submissionthat our jurisdiction to try this case on merits cannot be taken away with-out! injury to the basic postulates of the rule of law and of justice withina politically democratic constitutional structure. I do not think that wecan consistently with the objects of justice, including what is claimed as"political justice" which are parts of what is called the "basic structure",deny the right to claim an adjudication from this Court on exclusivelylegal issues (not political ones) between the majority party and the mino-rity groups of parties, however, large and legally right the majority partymay be and however small and legally wrong the minority groups orparties may be. Can the legal rights and wrongs, on such an issue, be re-solved, in accordance with the objects of the Preamble, anywhere otherthan this Court now ? I think that it would be a very dangerous pvece-'dent to lay down that they can be and need be determined nowhere at.all. That is what acceptance of total validity of Article 329A(4) maymean if it bars our jurisdiction to hear and decide such a case on merits.

What was sought to be done by the Constitutional amendment may bepolitically very justifiable. The question before us, however, is wHetlier


it is also legally justifiable. Here we are back again in the realm ofbasic principles of justice. We are not to decide a political question hereat all. BuK we have to decide legal questions even if they have, as manylegal issues have, political consequences and repurcussions which we can-not entirely ignore. Perhaps we have to go back to Marbiiry vs. Madison(supra), where Chief Justice Marshal said (at. p. 162):

"The very essence of civil liberty certainly consists in the right ofevery individual to claim the protection of the laws, wheneverhe receives an injury. One of the first duties of government isto afford that protection. In Great Britain the King himself issu-ed in the respectful form of a petition, and he never fails to com-ply with the judgment of his court.

In the 3rd. vol. of his Commentaries, p. 23 Blackstone states twocases in which a remedy is afforded by more operation of law.

'In all other cases', he says it is a general and indisputable rule, thatwhere there is a legal right, there is also a legal remedy by suit,or action at law, whenever that right is invaded."

It is true that the right which the election petitioner claims is a purelystatutory right. The right to come to this Court under Section 116A ofthe Act of 1951 is also a creature of statute and can be taken away re-trospectively. But, where this taking away also involves the taking awayof the right to be heard by this Court on a grievance, whether justifiableor not, that a minority party is being oppressed by the majority, can wedeny the spokesman of the minority even a right to be heard on merit ?Such an issue is constitutional. Confession of our inability to resolveit judicially would be, according to learned Counsel for the election peti-tioner a denial of "political justice". This issue is extrinsic so far as theAct of 1951 is concerned. The election petitioner has complained of thetaking away of his right to be heard with a view to depriving him of "poli-tical" justice with an ulterior object and political motivation. I have dealtwith the merits of the case to show that, from the legal aspect, his griev-ance, on. the merits of his case, is misconceived. He has no vested rightunder a palpably erroneous judgment which was the subject matter of thetwo appeals to this Court, nevertheless, this could only be demonstratedafter we had gone into the merits of the case and rendered our decisionon the issues in accordance with the law in the 1951 Act. Thus what isinvolved is the right of the election petitioner to be heard oa merits andthe power of this Court to look int>o the merits of the case in order todetermine whether the election-petitioner grievances could have any reallegal foundations. I think that this is a basic consideration which mustcompel us, in the light of the principles laid down by us in KesvancmdaBharti's case (supra), to hold that we must look into his grievances anddetermine, for ourselves, where his case stood on the law before it wasamended. Our jurisdiction, at any rate, cannot be barred without creatingthe impression that what the election petitioner calls "political justice" isbeing denied to him.

The question which arises now is: Was clause (4) of Art. _ 329-A,read with clauses (5) and (6), meant to bar our jurisdiction io consider thegrievances of the petitioner and to decide them, or, can they be so inter-preted as to preserve this courts jurisdiction ?


Broadly speaking, the election petitioner has two heads of grievance;firstly that the election of the original respondent is vitiated by corruptpractices which as I have indicated, after considering the case set up by himand the evidence tendered and the law applicable, could not possibly succeedeven under the law as it stood before the amendment; and, secondly thatour very jurisdiction to go into these grievances is sought to be debarredby clauses (4), (5) and (6) of Article 329-A with the political object ofstifling opposition, and, therefore, according to the election petitioner, wemust declare clause (4) and the connected clauses (5) and (6) on Article 329-Ato be invalid. Although, the 1st set of complaints is based upon theprovisions of the Act of 1951, the second set arises because of impugnedclauses of the 39th Amendment. For the second set of grievances, theaction complained of is that of the State itself acting through its law makingorgans. It is because of this interest of the Union of India acting in itslaw making capacity, that we have heard the Attorney General and theSolicitor General. Although, the second set of grounds may arise as aresult of the 1st set, yet, they are different. Our .jurisdiction to considerthese different grounds of complaint does not ordinarily arise at all in theexercise of our jurisdiction under Section 116-A of the Act of 1951. It isfor this reason, that the election petitioner had filed a separate Writ Petitionin the High Court to challenge an amendment of the Act. But, we decidedto hear arguments on constitutional issues also without a separate proceed-ing. The causes of action arising out of the amendments have becomeattached, if I may so put it to the appeals under section 116-A of the Actbecause we could not, under the law, hear the appeals unless these obstacles,if any, were overcome.

Indeed, so far as the original respondent is concerned, the effect ofclauses (4), (5) and (6) of Article 329-A would be, if we were to hold thatthey bar our jurisdiction to go into the merits of the appeals under Section116-A of the Act, that her grievance against the judgment under appeal alsocould not be gone into or dealt with. In other words, the original respondentwould also be denied an opportunity of asserting her rights under the 1951Act and of vindicating her stand in the case by showing that there wasreally no sustainable ground for the findings given by the learned Judge ofthe High Court against her. We would, therefore, be prevented from doingjustice to her case as well as if we were to accept the contention that the39th Amendment bars our jurisdiction to hear the appeals under Section116-A of the Act on merits. The total effect would be that really justicewould appear to be defeated even if, in fact, it is not so, as a result of thealleged bar to our jurisdiction if it were held to be there. Could it be theintention of Parliament that justice should appear to be defeated ? I thinknot.

It was also contended before us that we should not go at all into themerits of the case before us as it was a political matter. In other words,the "political question" doctrine was invoked in aid of the submission thatwe should voluntarily abstain from deciding a question of a "politicalnature". It is true that the "political question doctrine" has been sometimes invoked, in the past by the American Supreme Court to abstain fromtaking a decision. In answer to this argument, learned Counsel for theelection petition cited before us from comments on the Constitution of theUnited States of America (Analysis and Interpretation by the CongressionalResearch Service—973 Edn. p. 665) that the "political question" doctrineis the result of a "prudential" attitude Courts adopt when they find thattheir judgments may not be enforced. It was described there as "a way

25—345 Elec. Com./ND/81

374 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL- LVII

of avoiding a principled decision damaging to the Court or an expedientdecision damaging to the principle". It was also pointed out there thatthis doctrine has been rationalised and considerably narrowed down by theAMerican Supreme Court in Baker vs. Can. (369 U. S. 186) where it wasexplained that "non-justiciability of a political question is primarily functionof separation of powers". It really means that there are matters aboutwhich declarations made or certificates granted by the executive Wing otGovernment would be treated as conclusive so that Courts will not go behindthem. It was also said there :

"Deciding whether a matter has in any measure been committed by theConstitution to another branch of government or whether theaetion of that branch exceeds whatever authority has been com-mitted', is itself a delicate exercise in constitutional interpretation,and is a responsibility of this Court as ultimate interpreter of theConstitution."

Learned Council for the election petitioner also relied uponH, H. Maharfijadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur andOthers, versus Union of India, where this Court said : (at p. 75) :

"The functions of the State are classified as legislature, judicial andexecutive : the executive function is the residue which does notfall within the other two functions. Constitutional mechanism ina democratic policy does not contemplate existence pf any functionwhich may qua the citizens be designated as political and ordersmade in exercise whereof are not liable to be tested for theirvalidity before the lawfully constituted courts : Rai Sahib RamJawaya Kapur and others v. State of Punjab [1955 (2) S.C.R.225T; Jayantilal Amritlal, Shodhan v. F. N. Rana [1965 (3) S.C.R.201]; and Halsbury's Laws of England, 3rd Ed., Vol. 7, Art. 409, atp. 192.'*

Learned Solicitor General also contended that we were passing throughcritical times when a State of Emergency had been declared. He submittedthat the decision of the constituent authorities, in excluding a particular caseWorn" the jurisdiction of this Court, should be treated as an exercise of avery special power under very unusual conditions in which internal andexternal dangers, with which the country was surrounded, required thatthe position of the Prime Minister should be declared unequivocablyunassailable so that the need for further examination of the question of herelection to Parliament may not be raised any where else. This seems tobe another form in which "political question" argument could be and wasaddressed to us. Undoubtedly, clause (4) of Article 329-A could be saidto- have a political objective, in the context in which it was introduced, andwe could perhaps take judicial notice of this context. Even if it was possibleto go beyond the statement of objects and reasons and to hold that clause(4) of Article 329-A is there essentially for demonstrating the strong positionof the Government and of the Prime Minister of this country to all insideand outside the country so as to inspire the necessary confidence in and givethe necessary political and legal strength to the Government to enable itto go forward boldly to deal with internal economic and law order problemsand international question, yet, I fail to see why this could make it necessaryto exclude the jurisdiction of this Court so as to prevent it from consideringa case which would have been over much sooner if we had not been confront-ed with difficulties, at the very outset, in examining the merits of the case.Speaking for myself, I fail to see what danger to the country could arise

E.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 3?5

or how national interests could be jeopardised by a consideration and adecision by this Court of such a good case as I find that the Prime Ministerof this country had no facts and law. Nevertheless, I am prepared toconcede that there may be and was some very useful political objective tobe served by demonstrating the strength and ability of the Government toface the difficulties with which it had been confronted. If that be so, wecan certainly say that clause (4) of Article 32»9-A had a political objectiveand utility which has been served. And, if that was the real object behindits enactment, it could not be really to injure the interests of minoritypolitical parties or groups which is what is contended for on behalf of theelection petitioner. I think that the context and the political considerationsplaced before us could be relevant in understanding the real meaning ofclause (4) of Article 329-A of the Constitution.

It is a well established canon of interpretation that, out of two possibleinterpretations of a provision, one which prevents it from becoming uncons-titutional should be preferred if this is possible—ut res maqis vcdeat quantpereat. It is true that the deeming provision seems to stand in the way ofour examination of the merits of the case even though there is no directprovision taking away our jurisdiction to consider the merits of the appealsbefore us. It has, however, been repeatedly laid down that a deemingintroducing a legal fiction must be confined to the context of it and cannotbe given a larger effect. (See Radha Kishan v. Durga Prasad, A. I. R. 1940P. C. 167). In Bengal Immunity Co. Ltd., v. State of Bihar and another[1955 (2) S.C.R. 603']; it was held by this Court that a legal fiction iscreated for some definite purposes and should not be extended beyond itslegitimate field determined by its context. The same view has been express-ed by this Court in other cases : C. /. T- Bombay v. James Anderson[1964(5) S.C.R. 590]; C /. T., Madras v. Express Newspapers Ltd., Madras[1964 (8) S.C.R. 189]; Sri Jagadgum Kari Basava Rajendraswami ofVovimutt v. Commissioner of Hindu Religious Charitable Endowments,Hyderabad [1964 (8) S.C.R. 252].

In Ex-Parte Walton, In Re: Levy [1881 (17) Ch. D. 746], James, L. J.said :

"When a statute enacts that something shall be deemed to have beendone, which in fact and in truth was not done, then the court isentitled and bound to ascertain for what purposes and betweenwhat persons the statutory fiction is to be resorted to?".

In other words, we have to examine the context and the purpose ofthe legal fiction and confine its effects to these.

If the purpose of the clause (4) of Article 329-A was purely to meetthe political needs of the country and was only partly revealed by the policyunderlying the statement of reasons and objects it seems possible to contendthat it was not intended at all to oust the jurisdiction of the Court. Hence,Article 329A, clause (5) will not, so understood, bar the jurisdiction ofthe Court to hear and decide the appeals when it says that the appeal shallbe disposed of in conformity with the provisions of clause (4).

In the circumstances of this case, it would seem that conformity withthe declaration embodied in Article 329A, clause (4) is possible, if weconfine the meaning and effect of the deeming provision to what was neededonly for the declaration to be given at the end of clause (4) by the consti-tuent bodies, with a political object, and not for the purposes of effecting

3 7 6 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVIl

our jurisdiction which determines legal effecis of what is sought to be done.Of course, the more natural interpretation would appear to be that thedeeming provision should apply for "all purposes" including those forconsideration of the appeals before us. But, if it is not possible to decidethose appeals without giving a different meaning to the deeming provision,on which the final declaration in clause (4) rests, and clause (5) leaves usfree to decide how we could conform with clause (4), need our jurisdictionto decide factual and legal issues judicially be said to be affected? If thefiction was only a logical step in the process of the declaration to be madeby constituent authorities but not of ours, it would only attach to thedeclaration contained at the end of clause (4). Perhaps it could be argued,by applying the doctrine of "reading down", that clause (4) was not intend-ed to oust the jurisdiction of this Court altogether to try the case. Nosuch attempts at reading it down have, however, been made by learnedcounsel supporting the validity of Article 329A (4). It is not unlikely thatArticle 329A (4) was based on the misapprehension that the High Court'sjudgment may be legally correct or that there was a possibility, even for acase so ill-founded in fact and in law as the one put forward on behalfof the election-petitioner to succeed in this Court if it had succeeded in theHigh Court. We cannot indulge in guess work on these matters. In anycase, no useful purpose will be served now by our declaring anythingbeyond that clause (4) of Article 329A does not so operate as to bar thejurisdiction of this Court to go into and determine the merits of the appealsbefore us by applying the Act of 1951. Even if we were to consider mattersof expediency and national interest, as we should in appropriate cases, itdoes not appear to me to be either expedient or in conformity with nationalinterests to leave the matter in doubt whether the judgment under appealbefore us could or could not legally stand on its own legs under theunamended law.

For the reasons given above, I declare that Article 329A (4) does notstand in the way of the consideration of the appeals before us on meritsunder the Act of 1951 or the validity of the amendments of the Act. Ona consideration of the merits of Appeals Nos. 887 and 909 of 1975. I havecome to the conclusion, as indicated above, that appeal no. 887 must beallowed and the cross appeal no. 909 of 1975 must fail. The result is thatthe judgment and orders passed by the learned Judge of the AllahabadHigh Court on the election case are set aside and in such conformity withArticle 329A clause (4) as is possible for us I also declare the judgmentand the findings contained in it to be void and of no effect whatsoever. Itis not necessary for me to add that the order of the learned Judge holdingthe original respondent disqualified from occupying her office, disappearsipso facto and it neither has nor will be deemed ever to have had any legaleffect. Whatsoever. In the circumstances of the case I think the partiesshould bear their own costs throughout.

CHANDRACHTJD, J. : —The Election Petition out of which these appealsarise involved the question of the validity of the election of Srimati IndiraNehru Gandhi to the Lok Sabha. In the General Parliamentary Electionsof 1971, she was declared as the successful candidate from the Rae BareliConstituency in Uttar Pradesh. She won the election by a margin of 1,11,810votes over her nearest rival, Shri Raj Narain.

Shri Raj Narain, who was sponsored by the Samyukta Socialist Party,filed an election petition under section 80 read with section 100 of theRepresentation of the People Act, 1951, to challenge the election of the


successful candidate. Originally, the challenge was founded on numerousgrounds but during the trial of the petition in the High Court of Allahabad,the challenge was limited to seven grounds.

A learned Single Judge of the High Court, M. L. Sinha, J., upheld thechallenge on two grounds, rejecting the other grounds of challenge. Thatexplains the cross-appeals.

The High Court held that the successful candidate was guilty of havingcommitted two corrupt practices within the meaning of section 123(7) of theRepresentation of the People Act : Firstly, she obtained the assistance ofthe Gazetted Officers of the Government of Uttar Pradesh for furthering herelection prospects; and secondly, she obtained the assistance of Shri YashpalKapoor, a Gazetted Officer in the Government of India holding the post ofOfficer on Special Duty in the Prime Minister's Secretariat, for furtheringthe same purpose. Acting under section 8-A of the Act the learned Judgedeclared that the successful candidate would stand disqualified for a periodof six years from June 12, 1975 being the date of the judgment. Aggrievedby this part of the judgment, Srimati Indira Gandhi has filed appeal no.887 of 1975.

The other five grounds of challenge were : (1) The successful candidateprocured the assistance of the Armed Forces for arranging her flights byAir Force aeroplanes and helicopters; (2) Her election agent, Shri YashpalKapoor, and others distributed clothes and liquor to induce the voters tovote for her; (3) She and her election agent made appeals to the religioussymbol of cow and calf; (4) Her election agent and others procured vehiclesfor the free conveyance of voters to the polling stations; and (5) She andher election agent incurred or authorized expenditure in violation of section77(3) of the Act read with Rule 90 of the Conduct of Election Rules, 1961.These grounds having been rejected by the High Court, the defeatedcandidate has filed appeal no. 909 of 1975. The first two grounds weregiven up in appeal for the reason that the evidence on record was notlikely to be accepted by this Court in proof thereof.

The defeated candidate did not lead evidence in the High Court toshow that any part of the expenditure in excess of the permissible limit ofRs. 35,000 was incurred by the successful candidate or her election agent.His contention was that the expenditure incurred for her election by thepolitical party which had sponsored her candidature, the Congress (R), wasliable to be included in the expenses incurred or authorized by her. Thiscontention was founded on a decision rendered by a Division Bench of thisCourt on October 3, 1974 in Kanwar Lai Gupta v. AmaflftOth Chawla (AIR1975 S.C. 308).

On October 19, 1974 the President of India promulgated "The Repre-sentation of the People (Amendment) Ordinance, 1974" providing that"Notwithstanding any judgment, order or decision of any court to thecontrary, any expenditure incurred or authorized in connection with theelection, of a candidate by a political party or by any other association orbody of persons or by any individual (other than the candidate or his electionagent) shall not be deemed to be, and shall not ever be deemed to havebeen, expenditure in connection with the election incurred or authorized bythe candidate or by his election agent ". This provision was addedby the Ordinance by way of an Explanation to section 77(1) of the Repre-sentation of the People Act, 1951. It expressly excepted from its operation

378 SMT. INDIRA NEHRU GANDHI V- SHRI RAJ NARAIN [VOL. LVII

decisions of the Supreme Court voiding an election, before the commence-ment of the Ordinance, Shri Amarnath Chawla fell outside the Ordinance.It also excepted similar decisions of High Courts provided that they hadbecome final or unappealable. The Ordinance was replaced by the Repre-sentation of the People (Amendment) Act, 58 of 1-974, which was broughtinto force retrospectively from October 19, 1974.

The defeated candidate filed Writ Petition 3761 of 1975 in the HighCourt to challenge the constitutional validity of the Ordinance and the Actof 1974. In view of his finding that the total amount of expenditureincurred or authorized by the successful candidate or her election agent,together with the amount proved to have been incurred by the politicalparty or the State Government in connection with her election, did notexceed the prescribed limit, the learned Judge thought it unnecessary toinquire into the constitutionality of the Ordinance and the Act of 1974. He,therefore, dismissed the Writ Petition. An appeal was filed to a DivisionBench of the High Court from the aforesaid order but, by consent of parties,this Court decided to hear the points involved in the Writ Petition and inthe appeal therefrom.

During the pendency of these cross-appeals, the Parliament passed theElection Laws (Amendment) Act, 40 of 1975, which came into force onAugust 6, 1975. This Act, if valid, virtually seals the controversy in theappeal filed in this Court by the successful candidate from ihe decision ofthe Allahabad High Court. It aso takes care of a considerable gamut ofthe appeal filed in this court by the defeated candidate. It substitutes a newsection 8-A of the Representaion of the People Act, 1951 empowering thePresident to decide whether a person found guilty of corrupt practice shallbe disqualified and if so, for what period. By section 6, it amends section77 of the Act of 1951 making pre-nomination expenses a matter of irrelevantconsideration. It declares that the expenditure incurred by a Governmentservant in the discharge of his official duty in connection with any arrange-ments or facilities and such arrangements or facilities shall not be deemedto be expenditure or assistance incurred or rendered for the furtherance ofthe election prospects of the candidate concerned. By secion 7, it re-definesa "candidate" to mean a person who has been or claims to have been dulynominated as a candidate at any election. By section 8, it provides that nosymbol allotted to a candidate shall be deemed to be a religious or a nationalsymbol. And it says, to the extent relevant, that the publication in theOfficial Gazette of the resignation of a Government servant shall be con-clusive proof of the fact of resignation. If the effective date of the resigna-tion is stated in the publication, it shalll also be conclusive proof of the factthat the Government servant ceased to be in service with effectfrom the particular date. The amendments made by sections 6, 7 and 8of the amending Act have retrospective efiect and expressly govern electionappeals pending in this Court, among other proceedings.

The amendments brought about by Act 58 of 1974 and Act 40 of 1975have an incisive impact on the cross-appeals but their edge was blunted bythe Constitution (Thirty-ninth Amendment) Act which came into force onAugust 10, 1975. The 39th Amendment introduces two new articles in theConstitutions : Articles 71 and 329A; and it puts in the Ninth Schedulethree Acts: (i) The Representation of the People Act, 43 of 1951 ; (ii) TheRepresentation of the People (Amendment) Act, 58 of 1974 ; and (iii) TheElection Laws (Amendment) Act, 40 of 1975. The new Article 71 which


replaces its precursor empowers the Parliament to pass laws regulating i.heelections of the President and the Vice-President, including the making ofa provision for the decision of disputes relating to their election. Article329A has six clauses out of which the first three deal with the future elec-tion to the Parliament of persons holding the office of Prime Minister orSpeaker at the time of the election or who are appointed to these officesafter their election to the Parliament. These clauses aim at depriving thecourts of their jurisdiction to try election petitions in which the election ofthe Prime Minister or the Speaker to the Parliament is challenged. Clause4 frees the disputed election of the Prime Minister and the Speaker to theParliament from the restraints of all election laws. It declares such elec-tion as valid notwithstanding any judgment and clause 5 ordains that anyappeal or cross-appeal pending before the Supreme Court shall be dis-posed of on the assumption that the judgment under appeal is void, thatthe findings contained in the judgment never had any existence in the eyeof law and that the election declared void by the judgment shall continueto be valid in all respects. Clause 6 provides that Article 329A shall haveprecedence over the rest of the Constitution.

At first blush, what remains to be decided judicially in face of the 39thAmendment ? As an exercise of constituent power, the 39th Amendmentmust reign supreme. The political sovereign having reposed its trust in thelegal sovereign, the doings of the Constituent Assembly have an aura ofsanctity thai legal ingenuity may be powerless to penetrate. But that isan uninformed approach to a field strewn with various shades of legalland marks.

While repelling the challenge to the First Constitutional Amendmentwhich was passed in June 1951, this Court held in Sri Sankari Prasad SinqhDeo v. Union of India and State of Bihar, [(1952) 3 S. C. R. 89] that thepower of amendment conferred by Article 368 was not subject to any limi-tations, express or implied, and that fundamental rights were within thesweep of the amending power. The Seventeenth Constitutional Amendmentpassed in June 1964 was similarly upheld by a majority decision of thisCourt in Sajjan Singh v. Sta:e of Rajasthan, [(1965) 1 S. C. R. 933] whichtook the view that the fundamental rights were not intended by the framersof the Consiitution to be finally and immutably settled when the Constitu-tion was passed. But the Seventeenth Amendment came to be challengedonce again in /. C. Golak Nath and others v. Slate of Punjab and another.[1967 (2) S. C. R. 762]. By a majority of 6:5, this Court held that theSeventeenth Amendment was ultra vires the Parliament's power to amendthe Constitution. Five out of the six learned Judges held that Article 368did not confer any power to amend but merely prescribed the procedurefor amendment. The sixth learned Judge held that Article 368 did con-tain the power of amendment but that the Parliament must amend Article358 to convoke another Constituent Assembly, pass a law under item 97of List T of Schedule 7 to call a Constituent Assembly and then that As-sembly may be able to abridge or lake away the fundamental rights ifdesired.

The decision in Golak Nath's case raised a debate of national dimen-sions as the Parliament's power to amend the Consiitution so as to abridgeor take away the fundamental rights virtually became a dead letter. Underthe majority judgment, the Constituent Assembly alone, called by virtueof a law to be passed under Entry 97 of List f, could abridge or take away

380 SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN [VOL. LVIi

the fundamental rights. The Parliament, in a resolve to reaffirm its powers,passed the Constitution (Twenty-fourth Amendment) Act on November 5,1971 and the Constitution (Twenty-fifth Amendment) Act on April 20,1972. By the 24th Amendment, the Parliament amended Articles 13 and368 of the Constitution so as to provide that nothing contained in Article13 shall apply to any amendment of the Constitution made under Article368 and that notwithstanding anything in the Constitution, Parliament may,in the exercise of its constituent power, amend by way of addition, varia-tion or repeal any provision of the Constitution in accordance with theprocedure laid down in Article 368. As an instance of the amendatorypower re-acquired under the 24th Amendment, Parliament, by the 25 thAmendment, substituted a new clause (2) in Article 31 and introduced anew Article 31-C in the Constitution. By the 29;h Amendment, " Parlia-ment placed the Kerala Law Reforms (Amendment) Acts of 1969 and 1971in the Ninth Schedule.

A Bench of thirteen Judges of this Court sat to consider the constitu-tionality of the 24th, 25th and 29th Amendments. The eleven judgmentsdelivered in that case are reported in Keshavananda Bharati vs. State ofKerala, 1973 (Supp.) S. C. R. 1 commonly known as the FundamentalRights case. Golak Nath's case stood overruled as a result of the decisionin this case. But six learned Judges out of the thirteen (Sikri C. J., andShelat, Grover, Hegde, Reddy and Mukherjea JJ-,) accepted the conten-tion of the petitioners that though Article 368 conferred the power to amendthe Constitution, there were inherent or implied limitations on the powerof amendment and therefore, Article 368 did not confer power to amendthe Constitution so as to damage or destroy the essential elements or basicfeatures of the Constitution. Fundamental Rights, being a part of theessential features of the Constitution, could not therefore be abrogated oremasculated in the exercise of the power conferred by Article 368, thougha reasonable abridgement of those rights could be effected in the publicinterest. Brother Khanna J., found it difficult, in face of the clear wordsof Article 368, to exclude from their operation the articles relating to fun-damental rights in Part III of the Constitution. But proceeding to consider"the scope of the power of amendment under Article 368", the learnedJudge held that the power to amend did not include the power to abrogatethe Constitution, that the word "amendment" postulates that the old Con-stitution must survive without loss of identity, that the old Constitutionmust accordingly be retained though in the amended form, and thereforethe power of amendment does not include the power to destroy or abro-gate the basic structure or framework of the Constitution. The remainingsix Judges took the view that there were no {imitations of any kind on thepower of amendment, though three of them seemed willing to foresee thelimitation that the entire Constitution could not be abrogated, leaving be-hind a State without a Constitution. Some scholars have clapped andsome scholars have scoffed at the decision in the Fundamental Rights case.These criticisms, I cannot deny, cause a nutter in the ivory tower. But byArticle 141 of the Constitution, the law declared by the Supreme Court inbinding on all courts within the territory of India. The law declared bvthe majority of 7:6 in the Fundamental Rights case must therefore beaccepted by us, dutifully and without reserve, as good law. The history oflaw courts abounds with memorable decisions based on a thin majority.

These appeals have therefore to be decided in the light of the principleemerging from the majority decision in the Fundamental Rights case thatArticle 368 does not confer power on the Parliament to alter the basic


structure or framework of the Constitution. Arguments of the learnedcounsel appearing on both sides have taken many forms and shapes butthey ultimately converge on the central theme of basic structure.

I would like first to deal with the constitutional validity of the 39thAmendment. On that question, the arguments of Mr. Shanti Bhushan, whoappears for Shri Raj Narain, may be summed up this: (i) The 39th Amend-ment affects the basic structure or framework or the institutional patternadopted by the Constitution and is therefore beyond the amending powerconferred by Article 368. It! destroys the identity of the Constitution, (ii)Separation of powers is a basic feature of the Constitution and thereforeevery dispute involving the adjudicaiion of legal rights must be left to thedecision of the judiciary. Clause (4) of Article 329A introduced by the39th Amendment takes away that jurisdiction and is therefore void, (iii)The function of the legislature is to legislate and not decide private dis-putes. In the instant case the Constituent Assembly has transgressed itsconstituent function by adjudicating upon a private dispute, (iv) Democracyis an essential feature of the Constitution. Free and fair elections are in-dispensable for the successful working of any democratic government. Byproviding that the election of the Prime Minister shall not be to challengeand shall continue to be valid despite the judgment of the Allahabad HighCourt holding that the election is vitiated by corrupt practices, the Consti-tuent Assembly has destroyed the very core of democracy, (v) Equalityis an essential feature of a Republican Constitution. The 39 th Amendmentputs the Prime Minister and the Speaker above the law and beyond thereach of the equality principle. The classification made by the 39th Am-endment bears no nexus with the sort of immunity granted to two highpersonages, from the operation of election laws, (vi) Rule of law and judi-cial review are also basic features of the Constitution. To free certainpersons from the constraints of law and to place their conduct beyondjudicial review is to destroy the identity of the Constitution. No freedomis secure without the court to protect it. The organic balance between thethree branches, the legislature, executive and the judiciary, is upset byeroding the authority of the Supreme Court in a vital matter like elections.And the Rule of Law is abrogated by providing that the election of thePrime Minister shall continue to be valid and will be open to no challengebefore any court or any authority whatsoever, (vii) The concept of poli-tical justice recognized by the Preamble is violated by the 39th Amend-ment. The Constitution can always be subverted by revolutionary methods.The question is whether it is permissible to the Parliament to use the legiti-macy of constitutional provisions for effecting revolutionary changes, (viii)The constituent power partakes of legislative power and can only be exer-cised within the highest ambit of the latter power. Therefore, even witha two-third majority, the constituent body can not exercise executive orjudicial power. For example the power to appoint or dismiss a Govern-ment servant or the power to declare war which are executive powers can-not be exercised by the Constituent Assembly. Similarly, it cannot, in theguise of amending the Constitution, provide that an accused arraignedbefore a criminal court shall be acquitted and shall be deemed to be inno-cent. The constituent body can make changes in the conditions of theexercise of judicial power but it cannot usurp that power ; and lastly, (ix)The question in the Fundamental Rights case was whether Parliament can,in the exercise of its power of amendment abridge or take away Funda-mental Rights and whether there are any inherent or implied limitations anthe Parliament's power of amendment. In other words, the question waswhether the power of amendment can be exercised so as to destroy or

26—345 Elec. Com./ND/81

382 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN {VOL. LVH

mutilate the basic structure of the Constitution. The Fundamental Rightscase did not involve the consideration of the question as to what the power ofamendment comprehends. Promoting and demoting Government servants,passing and failing students who have appeared in an examination, grant-ing or withdrawing building contracts and last but not the least, declaringwho has won and who has lost an election are matters clearly outside thescope of the amending power under Article 368, which means and impliesthe power to alter the fundamental instrument of country's governance.

Learned counsel appearing for the Union of India and for Smt. IndiraGandhi did not dispute the contention that the appeals before us must bedisposed of on the basis of the law laid down by the majority in the Funda-mental Rights case.

The learned Attorney-General contended that: (i) The majority deci-sion in the Fundamental Rights case is not an authority for the proposi-tion that there could be no free or fair elections without judicial review.The Constitutions and laws of several countries leave the decision of elec-tion disputes to the judgment of the legislatures themselves. The historyof the Representation of the People Act, 1951 as also various Articles inour Constitution show that judicial review can be excluded in appropriatecases as a matter of policy, (ii) That validation of elections is a processwell-known to democratic forms of Government, (iii) That a law may beconstitutional even if it relates to a single individual if on account of spe-cial reasons, the single individual could be treated as a class by himself,(iv) That it is clear from Articles 326 and 327 of the Constitution that theConstitution makers thought that as a matter of high policy electionsought to be dealt with by the Constitution itself and not by ordinary legis-lation "passed within the framework of the Constitution. How much ofelections should % dealt .with by the Constitution and how much shouldbe relegated to ordinary legislation is not a .matte? for the courts to decide.If the constituent body thought that the offices of the Prime Minister andthe Speaker are important enough to be dealt with by the Constitution itselfin the matter of their election to the Parliament, it cannot be said that thedecision is frivolous or without jurisdiction; and that (v) The contentionthat the 39fh Amendment is not an exercise of constituent power shouldnot be allowed to be taken up because every possible aspect of the matterwas argued in Sankari Prasad's case, Sajjan Singh's case and the Funda-mental Rights case. The basic question involved in these cases was as towhat is the meaning of the word "amendment". The argument now is thatthere is a further limitation on the amending power. If it is the samequestion and has been decided, it cannot be reopened by saying that thequestion has a new aspect which was not considered then. If the questionis new, the principle of the Fundamental Rights case cannot be extendedany further. Therefore, the constituent power must be held to be a plenarypower on which the only limitation is as regards the inviolability of diebasic structure.

The learned Solicitor-General who continued the unfinished argu-ments of the learned Attorney-General urged that (i) Article 14 is foundedon a sound public policy recognised and followed in all civilised States.The exclusion of judicial review does not by itself mean the negation ofequality. Article 31-B which on the face of it denied equality to differentsections of the community attained the ideal of economic justice by bring-ing about economic equality. Article 33, also shows that the demands ofpublic problems may require the adjustment of Fundamental Rights for


ensuring greater equality, (ii) What a Constitution should contain dependson what permanency is intended to be accorded to a particular provisionincluded in the Constitution, (iii) Exclusion of judicial review is at leastpermissible in those fields where originally the Constitution did not pro-vide for or contemplate judicial review, (iv) If the election law does notapply, as it ceases to apply by virtue of Article 329A(4), it is the functionof the legislature to declare whether or not a particular election is good orbad ; and that (v) Rule of Law is not a part of the basic structure of theConstitution and apart from Article 14, our Constitution recognises neitherthe doctrine of equality nor the Rule of Law.

Shri A. K. Sen who appears for Srimati Indira Gandhi defended the39th Amendment by contending that: (i) The Amendment follows the well-known pattern of all validation Acts by which the basis of judgments ororders of competent courts arid Tribunals is changed and the judgmentsand orders are made ineffective, (ii) The effect of validation is to changethe law so as to alter the basis of any judgment to which might have beengiven on the basis of old law and thus to make the Judgment ineffective,(iii) A formal declaration that the judgment rendered under the old Actis void, is not necessary. If the matter is pending in appeal, the appellatecourt has to give effect to the altered law and reverse the judgment. If thematter is not pending in appeal, then the judgment cases to be operativeand binding as res judicata. (iv) The rendering of a judgment ineffectiveby changing its basis by legislative enactment is not an encroachment onjudicial power but a legislation within the competence of the legislaturerendering the basis of the judgment non est. (v) The constituent powerhas retrospectively changed the law in so far as it relates to election. Theconstituent authority could have left the application of the changed laweither to Parliament or to any other body. But it has chosen to assumethe duty of determination in this particular case for itself, (vi) The deter-mination of election disputes and the validity of elections is not an exer-cise of judicial power. This function may be left either to courts, properlyso-called or to Tribunals or to other bodies including the legislature itself,(vii) The rigid separation of powers as it obtains in the United States orin a lesser degree under the Australian Constitution does not apply toIndia. Many powers which are strictly judicial have been excluded fromthe purview of the courts. There is, therefore, no question of any separa-tion of powers being involved in matters concerning elections and electionpetitions, (viii) There is no question of separation of powers when theconstituent authority exercises either a power which is allocated to theLegislature, or to the Executive or to the Judiciary under the Constitution.In the hands of the constituent authority there is no demarcation of powers.But the demarcation emerges only when it leaves the hands of the consti-tuent authority through well defined channels into demarcated pools. Theconstituent power is independent of the fetters of limitations impose byseparation of powers in the hands of the organs of the Government, amongstwhom the Supreme authority of the State is allocated, (ix) The Consti-tuent power springs as the fountain head and partakes of sovereignty andis the power which creates the organs and distributes the powers. There-fore, in a sense, the constituent power is all embracing and is at oncejudicial, executive and legislative. It is in a sense, a "super power", (x^Even if the preamble lays down as its objective the attainment of equality,the 30th Constitution Amendment does not violate the said concept otequality as the same is based on a rational classification and has a reason-able nexus with the object of the Amendment, (xi) The preamble to the

834 SMf. INDIRA NEL-IRU GANDHI V. SHRI RAJ NARAI.N" [VC1.1.VII

Constitution only refers to securing "equality of status and opportunity".Equality of status and opportunity has go; many faces, some of these facetsare guaranteed as fundamental rights under Articles 14 to 18 of the Consti-tution. These facets alone can be considered to be basic features of theConstitution, assuming that equality was a basic feature of the Conscitu-tion. (xii) ''Free and fair election" does not postulate that there must bea consiitutional provision for determining election disputes by a separateTribunal or Court, (xiii) The 39th Amendment Act does not affect thestructure of a Republican i3c;jocracy, assuming that the same is a basicfeature of the Constitution. The validation of "one election does not alterthe character of the democracy ; and (xiv) A Constitutional amendmentneed not necessarily relate to the structural organisation of the State.

Shri Jagannath Kai.shal supported the arguments of Shri Sen by citingpragmatic illustrations. He gave interesting statistics showing that a verysmall percentage of election petitions succeed eventually which, accordingto him, is evidence that such petitions are used by defeated candidates asan instrument of oppression against successful candidates, parliament,therefore, wanted to save high personages from such harassment. A lawmay benefit a single individual and may still be valid. According to ShriKaushal, the judgment of the Allahabad High Court became a nullity byreason of that Court ceasing retrospectively to have jurisdiction over ch"dispute and a judgment which is a nullity need not be set aside. It caneven be challenged in a collateral proceeding.

I thought it only fair to indicate broadly the line of approach adoptedby the various learned counsel to the question as regards the validity ofthe 39th Amendment. It will serve no useful purpose to take up each oneof the points for separate consideration and indeed many an argument isonter-related. It would be enough for my purpose to deal with what Iconsider to be points of fundamental importance, especially as my learnedBrethren have dealt with the other points.

This Court has jirictly adhered to the view that in Constitutionalmatters one must decide no more than is strictly necessary for an effectiveadjudication of the points arising in any case. By that test, a numericallysubstantial part of the 39'n Amendment has to be deferred for considera-tion to a future occasion. We are clearly not concerned in these appealswith the new Article 71 introduced by the 39th Amendment which dealswith the election of the President and the Vice-President. We are concernedwith the new Article 329A but not with the whole of it. Clauses (1) to (3)of that Article deal with future events and the validity of those clausesmay, perhaps, be examined when those events come to happen. Clauses(4) to (6) of Article 329A are the ones that are relevant for our purposeand I propose to address myself to the validity of those provisions.

therewith cea:;e to apply to the Parliamentary election of Srimai IndiraGandhi which took place in 1971. (ii) Such Laws are repealed retrospec-tively in so f"r as fey governed the aforesaid election, with the result thatthey"must never be deemed to have applied to that election, (iii) Such anelection cannot be declared to be void on any of the grounds on which itcould have been declared to be void under the Laws which were in force


prior to August 10, 1975. (iv) The election shall not be deemed over tohave become void on any ground on which, prior to August 10, 1975 it wasdeclared to be void, (v) The election shall continue to be valid in all res-pects notwithstanding the judgment of any court, which includes the judg-ment dated June 12, 1975 of the High Court of Allahabad, (vi) The judg-ment of the Allahabad Court and any rinding on which the judgment andorder of that court is based are void and shall be deemed always to havebeen void.

Shri Shanti Bhushan has, as it were, a preliminary objection to the39th Amendment that the election of a private individual and the disputeconcerning it cannot ever be a matter of Constitutional amendment. Whe-the contention is not open to be taken. The qusion raised by Shri Shantioi the argument of the Attorney-General that in view of the decisions inSankari Prasad's case, Sajjan Singh's case and the Fundamental Rights case,the contention is not open to be taken. The question raised by Shri ShantiBhushan was not raised or considered in either of the three aforesaid casesand I do not see how the question can be shelved. The argument is nota new facet of the theory of inherent or implied limitations on the amend-ing power, in which case it might have been plausible to contend that thelast word was said on the subject by the Full Court in the FundamentalRights case. The question now raised touches a totally new dimension ofthe amending power: Can the Constituent Assembly, while amending theConstitution, pronounce upon private disputes or must it only concernitself with what may be termed organisational matters concerning the coun-trys governance ? The question has the merit of novelty, but I see no sub-stance in it. But I must clarify that I prefer to examine the point in isola-tion, that is, divorced from considerations arising from the theory of separa-tion of powers. Whether the amendment constitutes and encroachment onjudicial functions and thereby damages one of the basic structures of theConstitution may best be examined separately. The reason why I see nosubstance in Shri Shanti Bhushan's contention is that what the Constitu-tion ought to contain is not for the Courts to decide. The touchstone ofthe validity of a Constitutional amendment is firstly whether the procedureprescribed by Article 368 is strictly complied with and secondly whetherthe amendment destroys or damages the basic structure of the Constitu-tion. The subject-matter of constitutional amendments is a question ofhigh policy and Courts are concerned with the interpretation of laws, notwith the wisdom of the policy underlying them. I do not see why the Con-stitution cannot be amended so as to provide that wagering contracts shallbe void or that bigamous marriages shall be unlawful or that economicoffenders shall be visited with a higher penalty. The Indian Constitutionis not like the Americon Constitution an instrument of few words. Therange of topics it co-covers would bemuse any student of foreign Constitu-tions which do not even skirt the problems with which our Constitutiondeals in copious details. In fact, there is hardly any important facet ofnational life which our Constitution does not touch Along with mattersof high priority like citizenship, Fundamental Rights, Directive Principlesof State policy and the relations between the Union and the States, it deal*with matters not normally considered constitutionally important like thesalaries of high dignitaries, the power of the Supreme Court to frame rule?for regulating its practice and procedure, official language for communica-tion between one State ond another and last but not the least, elections tothe Parliament and the State Legislatures. Those to whose wisdom andjudgment the constituent power is confided, will evoke scorn and derisionif that power is used for granting or withdrawing building contracts, pass-


ing or failing students or granting and denying divorces. But they electoratelives in the hope that a sacred power will not so flagrantly be abused andthe moving finger of history warns of the consequences that inevitably flowwhen absolute power has corrupted absolutely. The fear of perversion isnot test of power.

But the comparison is odious between the instances given by Sri SliantiBhushan and the subject-matter of Article 329-A(4) of the Constitution. Inthe first place, elections to legislatures were considered by Constitutionmakers to be a matter of constitutional importance. Secondly, though thepowers of the Prime Minister in a cabinet form of democracy are not asunrivalled as those of the President in the American system, it is unde-niable that the Prime Minister occupies a unique position. The choice ofthe subject for constitutional amendment cannot, therefore, be characterizedas trifling, frivolous or outside the framework of a. copious Constitution.In America, the challenge to the 19th Amendment on the ground that ordi-nary legislation cannot be embodied in a constitutional amendment wasbrushed aside as unworthy of serious attention. Rottschaefer endorsed itas consistent with the ultimate political theory on which the Americanconstitutional system is based. "The people, acting through the machineryprovided by the existing Constitution, must be accorded the legal powerto change their basic law by peaceable means". (Rottschaefer on Consti-tutional law, 39th Ed., P. 397). In fact, it is wrong to think that electionsto the country's legislatures are a private affair of the contestants. They aretnatters of public interest and of national importance. Every citizen hasa stake in legislative elections for, his social and economic well-being de-pends upon the promises and performance of the legislators. Such ekc-tions, and more so the election of the Prime Minister who is at least primusinter pares, can legitimately form the subject-matter of a constitutional pro-vision. The validity of what is brought into the Constitution, has to bejudged by different standards.

There was some discussion at the Bar as to which features of the Con-stitution form the basic structure of the Constitution according to the ma-jority decision in the Fundamental Rights case. That, to me, is an inquiryboth fruitless and irrelevant. The ratio of the majority decision is not thatsome named features of the Constitution are a part qf its basic structurebut that the power of amendment cannot be exercised and so as to damageor destroy the essential elements or the basic structure of the Constitution,whatever these expressions may comprehend. Sikri, C. J. mentions supre-macy of the Constitution, Republican and Democratic form of the Govern-ment, secular character of the Constitution, separation of powers, federa-lism and dignity and freedom of the individual as essential features of theConstitution. Shelat and Grover, JJ. have added to the list two otherfeatures: the mandate to build a welfare State and unity and integrity ofthe Nation. Hegde and Mukherjea, JJ. added sovereignty of India as afundamental feature of the Constitution. Reddy, J. thought that a sovereigndemocratic republic, Parliamentary democracy and the three organs of theState form the basic structure of the Constitution. Khanna, J. held thatfundamental' rights are not a part of the basic structure and therefore theycan be abrogated like many other provisions. He observed that basicstructure indicates the broad outlines of the Constitution and since the rightto property is a matter of details, it is not a part of that structure. Thedemocratic form of Government, the secular character of the State andpossibly judicial review are according to Brother 'Khanna a part of the basicstructure of the Constitution. It is obvious that these are merely illustra-

3.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 387

tions of what constitutes the basic structure and are not intended to beexhaustive. Shelat and Grover, JJ., Hegde and Mukherjea, JJ., and Reddy,J. say in their judgments that their list of essential features which form thebasic structure of the Constitution is illustrative or incomplete. For deter-mining whether a particular feature of the Constitution is a part of its"basic structure, one has per force to examine in each individual case theplace of the particular feature in the scheme of our Constitution, its objectand purpose, and the consequences of its denial on the integrity of the Con-stitution as a fundamental instrument of country's governance. But it isneedless for the purpose of these appeals to ransack every nook and crannyof the Constitution to discover the bricks of the basic structure. Those thatare enumerated in the majority judgments are massive enough to cover therequirements of Shri Shanti Bhushan's challenge.

I consider it beyond the pale of reasonable controversy that if therebe any unamendable features of the Constitution on the score that theyform a part of the basic structure of the Constitution, they are that: (i) Indiais a Sovereign Democratic Republic ; (ii) Equality of status and opportunityshall be secured to all its citizens ; (iii) The State shall have no religion ofits own and all persons shall be equally entitled to freedom of conscienceand the right freely to profess, practise and propagate religion and that;(iv) the Nation shall be governed by a Government of Laws, not of men.These, in my opinion, are the pillars of our constitutional philosophy, thepillars, therefore, of the basic structure of the Constitution.

I find it impossible to subscribe to the view that the Preamble ofthe Constitution holds the key to its basic structure or that the preambleis too holy to suffer a human touch. Constitutions are written, if they arewritten, in the rarefied atmosphere of high ideology, whatever be the ideo-logy. Preambles of written Constitutions are intended primarily to reflectthe hopes and aspirations of people. They resonate the ideal which theNation seeks to achieve, the target, not the achievement!. In parts, there-fore, they are metaphysical like slogans. For example, the concept of Fra-ternity which is referred to in our Preamble is not carried into any provi-sion of the Constitution and the concept is hardly suitable for encasementin a coercive legal formula. The Preamble, generally, uses words of "pas-sion and power" in order to move the hearts of men and to stir them intoaction. [Constitutional Law of India, 2nd Ed. (1975), page 76—H. M.Seervai]. Its own meaning and implication being in doubt, the Preamble-cannot affect or throw light on the meaning of the enacting words of theConstitution. [See Attorney-General' versus Prince Earnest Augustus ofHanover (1975), A. C. 436, 463]. Therefore, though our Preamble wasvoted upon and is a part of the Constitution, it is really "a preliminarystatement of the reasons" which made the passing of the Constitution neces-sary and desirable. (Halsbury's Laws of England, 3rd Ed., page 370, para343). As observed by Gajendragadkar, J. in In re Berubari Union and Ex-change of Enclaves, [(I960) 3 S. C. R. 250, 282]. What Willoughby hassaid about the Preamble to the American Constitution, namely, that it hasnever been regarded as the source of any substantive power, is equally trueabout the prohibitions and limitations. The Preamble qf our Constitutioncannot therefore be regarded as a source of any prohibitions or limitations.

Judicial review, according to Sri Shanti Bhushan, is a part of the basicstructure of the Constitution and since the 3-9th Amendment by articles 329A(4) and (5) deprives the courts, including the Supreme Court, of their powerto adjudicate upon the disputed election the Amendment is unconstitutional

388 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVIP

The fundamental premise of this argument is too broadly stated because theConstitution, as originally enacted, expressly excluded judicial review in alarge variety of important matters. Articles 31(4), 31(6), 136(2), 227(4),262(2) and 329(a) are some of the instances in point. True, that each ofthese provisions has a purpose behind it but these provisions show that theConstitution did not regard judicial review as an indispensable measure ofthe legality or propriety of every determination. Article 136(2) expresslytook away the power of the Supreme Court to grant special leave to appealfrom the decisions of any court or Tribunal constituted by a law relatingto the Armed Forces. Article 262 (2) authorized the Parliament to makea law providing that the Supreme Court or any other court shall have nojurisdiction oYer certain river disputes. But what is even more to thepoint are the provisions contained in articles 103 (1) and 329 (b). Article102 prescribes disqualifications for membership of the Parliament. Byarticle 103 (1), any question arising under article 102 as to whether amember of the Parliament has become subject to any disqualification hasto be referred to the President whose decision is final. The President isrequired by article 103 (2) to obtain the opinion of the Election Commissionand Act according to its opinion. Thus, in a vital matter pertaining tothe election for membership of the Parliament, the framers of the Consti-tution had left the decision to the judgment of the executive. Articles 327and 328 give power to the Parliament and the State legislatures to provideby law for all matters relating to elections to the respective legislatures,including the preparation of electoral rolls and delimitation of constituencies,By article 329 (a), the validity of any law relating to the delimitation cfconstituencies or the allotment of seats to such constituencies cannot becalled in question in any court.

The provision contained in article 329 (b) is decisive on the questionunder consideration. That article provides that no election to the Parliamentor the State Legislature shall be called in question except by an electionpetition presented to such authority and in such manner as may be providedfor by or under any law made by the appropriate Legislature. It wastherefore open to the Legislature to leave the adjudication of electiondisputes to authorities other than those in the hierarchy of our judicialsystem. In fact, until the passing of the Representation of the People(Amendment) Act, 47 of 1966, by which High Courts were given jurisdictionto try election petitions, that jurisdiction was vested first in a tribunal con-sisting of three members and later in a tribunal consisting or a singlemember who was to be a sitting District Judge. The decisions of thosetribunals could eventually be brought before the Supreme Court under article136 (1) of the Constitution but it is at least plausible that were the Legis-latures to pass laws leaving the decision of elecion disputes to themselves,judicial review might have stood excluded. Since the Constitution, asoriginally enacted, did not consider that judicial power must intervene inthe interests of purity of elections, judicial review cannot be considered tobe a part of the basic structure in so far as legislative elections are concern-ed. The theory of basic structure has to be considered in each individualcase, not in the abstract, but in the context of the concrete problem. Tneproblem here is whether under our Constitution, Judicial review was consi-dered as an indispensable concomitant of elections to country's legislatures.The answer, plainly, is no.

In England, prior to 1770, controverted elections were tried by thewhole House of Commons as mere party questions but in order "to preventso notorious a perversion of justice", the House consented to submit the


•exercise of its privilege to a Tribunal composed of its own members. (SeeMay's Parliamentary Practice, 18th Ed., pp. 29-30). In 1868, the jurisdictionof the House to try election petitions was transferred by statute to theCourts of Law. A Parliamentary election petition is now tried by twojudges from out of three puisne judges of the Queen's Bench Division whoare put on the rota for trial of such petitions by selection every year by amajority of votes of the Judges of that Division. At the conclusion of thetrial, the Court must forthwith certify the determination to the Speaker. Thedetermination, upon such certification, is final to all intents and purposes.Thus, in England, the Election Court is constituted by a special, method,it exercises a jurisdiction out of the ordinary jurisdiction which is normallyexercised by Courts of Law and its determination acquires finality uponcertification to the Speaker of the House of Commons. No appeal liesagainst the decision of the Election Court save by leave of the Court andif leave is granted, the decision of the Court of Appeal is final and conclusive.

Under Article 1, section 5, clause 1 of the American Constitution, eachHouse is the judge of the elections, returns and qualifications of its ownmembers. Each House, in judging of elections under this clause, acts asa-judicial tribunal. [See The Constitution of the U. S. A.,—Lester Jayson{! 973)]. Any further review of the decisions of the two Houses seemsimpermissible.

I am therefore unable to accept the contention that Articles 329A(4)and (5) are unconstitutional on the ground that by those provisions, theelection of the Prime Minister is placed beyond the purview of courts.

Equally, there is no substance in the contention that the relevant clausesof the 39th Amendment are in total derogation of 'political justice' and areaccordingly unconstitutional. The concept of political justice of which thePreamble speaks is too vague and nebulous to permit by its yardstick theinvalidation of a Constitutional amendment. The Preamble, as indicatedearlier, is neither a source of power nor of limitation.

The contention that 'Democracy' is an essential feature of the consti-tution is unassailable. It is therefore necessary to see whether the impugn-ed provisions of the 39th Amendment damage or destroy that feature. Thelearned Attorney-Genera] saw an unsurmountable impediment in the exist-ence of various forms of democracies all over the world and he asked :What kind and form of Democracy constitutes a part of our basic structure?The cabinet system, the Presidential system, the French, the Russian or anyother? This approach seeks to make the issue unrealistically complex. Ifthe democratic form of government is the corner-stone of our Constitution,the basic feature is the broad form of democracy that was known to OurNation when the Constitution was enacted, with such adjustments andmodifications as exigencies may demand but not so as to leave the merehusk of a popular rule. Democracy is not a dogmatic doctrine and no onecan suggest that a rule is authoritarian because some rights and safeguardsavailable to the people at the inception of its Constitution have been abridg-ed or abrogated or because, as the result of a constitutional amendment, theform of government does not strictly comport with some classical definitionof the concept. The needs of the Nation may call for severe abnegation,though never the needs o-f the Rulers and evolutionary changes in thefundamental law of the country do not necessarily destroy the basic structureof its government. What does the law live for, if it is dead to living needs ?


We cannot therefore, as lawyers and judges, generalize on what constitutes'Democracy' though we all know the highest form of that idealistic concept—the state of bliss—in political science.

The question for consideration is whether the provisions contained inArticles 329A (4) and (5) are destructive of the democratic form of govern-ment. The answer does not lie In comparisons with what is happening inother parts of the w">rld, those that stake their claim to 'Democracy",because we are not concerned to find whether despite the 39th Amendmentwe are still not better off, democratically, than many others. The compa-rison has to be between the pre-39th Amendment period and the post-39thAmendment period in the context of our Constitution.

"Those of us who have learned humility have given over the attemptsto define law". This statement of Max Radin ["A Restatement of Honfeld".Harvard Law Review (1938). yol. 51, pp. 1141, 1145] may be used toexpress a similar difficulty in defining ' Democracy' but just as legalscholars, not lacking in humility, have attempted to define 'Law', so havepolitical scientists attempted a satisfactory definition of 'Democracy'. Theexpression is derived from the Greek word 'Domos', which was often usedby the Greek* to describe the many, as distinct from the few, rather thanthe people as a whole. And Aristotle defined democracy as the rule ofthe poor, simply because they formed, always and necessarily, the morenumerous class. But the word is commonly used "in the sense of the rule,of the majority of the community as a whole, including 'classes' and'masses' , since that is the only method yet discovered for determiningwhat is deemed to be the will of a body politic which is not) unanimous. Thiswill is expressed through the election of representatives". [Modern PoliticalConstitutions by C. F. Strong; (E. L. B. S. Ed. 2nd Impression, 1970) p. 1721C. F. Strong defines democracy to mean "that form of government in whichthe ruling power of a State is legally vested, not in any particular class orclasses, but in the members of a community as a whole". This may moreaptly be called a description rather than a definition of democracy becauseit is beyond human ingenuity to foresee the possible permutations andcombinations of circumstances to which a generalisation may have to beapplied.

Forgetting mere words which Tennyson said : 'Like Nature, half revealand half conceal the Soul within', the substance of the matter is the ruleof the majority and the manner of ascertaining the will of the majority isthrough the process of elections. I find myself unable to accept that theimpugned provisions destroy the democratic structure of our government.The rule is still the rule of the majority despite the 39th Amendment andno law or amendment of the fundamental instrument has provided for theabrogation of the electoral process. In fact it is through that process thatthe electorate expressed its preference for Sriit. Indira Gandhi over ShriRaj Narain and others. Article 326 of the Constitution by which theelections to the House of the People and to the State Legislative Assembliesshall be on the basis of Adult Suffrage still stands. Article 79 which providesthat 'There shall be a Parliament which shall consist of twoHouses," Articles 80 and 81 which prescribe the composition of the twoHouses. Article 83 which provides for the duration of the Houses, Articls85 which directs that six months shall not intervene between the twosessions of Parliament, Article 100(1) which provides that all questions shallbe determined by a majority of votes of the members present and voting.Artic'e 105 which preserves the powers and privileges of the members of


Parliament and the counterparts of these articles in regard to State Legisla-tures retain their pristine primacy. These articles, unimpaired as theyremain even after the 39th Amendment, are enough assurance that theParliament is not leading the country to a totalitarian path.

This is not to put a seal of approval on the immunity conferredon any election but it is hard to generalize from a single instance thatsuch an isolated act of immunity has destroyed or threatens to destroy thedemocratic framework of our Government. One swallow does not make asummer. The swallow with its pointed wings, forked tail, a curving mightand twittering cry is undoubtedly a harbinger of summer but to see all thesein the 39th Amendment and to argue that the summer of a totalitarian ruleis knocking at the threshold is to take an unduly alarmist view of thepolitical scene as painted by the Amendment. Very often, as said by SirFrederick Pollock, "If there is any real danger it is of the alarmist's ownmaking" [Ethics and Morals (Essays in Jurisprudence) p. 303].

The 39th Amendment is, however, open to grave objection on othergrounds, in so far as clauses (4) and (5) of Article 329A are concerned.Generality and equality are two indelible characteristics of justice administer-ed according to law. The Preamble to our Constitution by which thepeople of India resolved solemnly to secure to all its citizens equality ofstatus and opportunity finds its realization in an ampler measure in Article 14which guarantees equality before the law and the equal protection of lawsto all persons, citizens and non-citizens alike. Equality is the faith and creedof our Democratic Republic and without it. neither the Constitution northe laws made under it could reflect the common conscience of those whoowe allegiance to them. And if they did not, they would fail to commandrespect and obedience without which any Constitution would be doomed tofounder on the rocks of revolution. A Constitution which, without a truenexus, denies equality before the law to its citizens may in a form thinlydisguised, contain reprisals directed against private individuals in mattersof private rights and wrongs. The English Acts of Attainder beginningwith the one passed by the English Parliament in 1459 after the commence-ment of the Wars of Roses or the 'Privilegium' in Rcme are only some ofthe historical instances in point. Speaking of. Bracton's famous passagewhich contains the admonition that the King ought to be under the lawbecause the law makes him King, Sir Frederick Pollock says that there youhave in a nutshell the great point of Constitutional freedom that law is notmerely the instrument of Government, but the safeguard of each individualcitizen's public rights and liberties [Jurisprudence and Legal Essays (196Dp. 195].

Article 329A (4) makes the existing election laws retrospectivelyinapplicable, in a very substantial measure, to the Parliamentary elections ofthe Prime Minister and the Speaker. The inapplicability of such laws createsa legal vacuum because the repeal, so to say, of existing laws is only astep-in-aid to free the election from the restraints and obligations of allelection laws, indeed of all laws. The plain intendment and meaning ofclause (4) is that the election of the two personages will be beyond thereach of any law, past or present. What follows is a neat logical corollary :The election of the Prime Minister could not be declared void as there wasno law to apply to that election; the judgment of Allahabad High Courtdeclaring the election void is itself void; and, the election continues to bevalid as it was before the High Court pronounced its judgment.

392 SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN [VOL. LVI1

These provisions are an outright negation of the right of equalityconferred by Article 14, a right which more than any other is a basic postu-late of our Constitution. It is true that the right, though expressed in anabsolute form, is hedged in by a judge-made restriction that it is open tothe Legislature to make a reasonable classification so that the same law willnot apply to all persons alike or different laws may govern the rights andobligations of different persons falling within distinct classes. The "boast ofLaw that it is no respector of persons is the despair of drawers of watersand newers of wood who clamour for a differential treatment. The judgetakes that boast to mean that in an egalitarian society no person can bsabove the law and that justice must be administered with an even handto those who are situated equally. In other words, all who are equal areequal in the eye of law and it will not accord a favoured treatment to personswithin the same class. Laws, as Plato said, would operate 'like an obstinateand ignorant tyrant if they imposed inflexible rules without allowing forchanged circumstances or exceptional cases. [See "The Sense of injustice"by Edmond Cahn (1964 p. 161) in which the reference is made to Plato'sPolitious" p. 294].

This Court, at least since the days of Anwar AH Sarkar's case, (1952S. C. R. 284), has constantly taken the view thai! the classification must befounded on an intelligible differentia which distinguishes those who aregrouped together from those who are left out and that the differentia musthave a rational relation, to the object sought to be achieved by the particularlaw. The first test may be assumed to be satisfied since there is no gainsaying that in our system of Government, the Prime Minister occupies aunique position. But what is the nexus of that uniqueness with the lawwhich provides that the election of the Prime Minister and the Speaker tothe Parliament will be above all laws, that the election will be governedby no norms or standards applicable to all others who contest that electionand that an election declared to be void by a High Court judgment shall bedeemed to be valid, the judgment and its findings being themselves requiredto be deemed to be void? Such is not the doctrine of classification and nofacet of that doctring can support the favoured treatment accorded by the39th Amendment to two high personages. It is the common man's senseof justice which sustains democracies and there is a fear that the 59thAmendment, by its impugned part, may outrage that sense ofjustice. Different rules may apply to different conditions and classes ofmen and even a single individual may, by his uniqueness, form a class byhimself. But in the absence of a differentia reasonably related to the objectof the law, justice must be administered with an even hand to all.

It follows that clauses (4) and (5) of Articles 329A are arbitrary andare calculated to damage or destroy the Rule of Law. Imperfections oflanguage hinder a precise definition of the Rule of Law as of the definitionof 'Law' itself. And the Constitutional Law of 1975 has undergone manychanges since A. V. Dicey, the great expounder of the rule of law, deliveredhis lectures as Vinerian Professor of English Law at Oxford, which werepublished in 1885 under the title, 'Introduction to the Study of the Law ofthe Constitution'. But so much, I suppose, can be said with reasonablecertainty that the rule of law means that the exercise of powers of govern-ment shall be conditioned by law and that subject to the exceptions to thedoctrine of Equality, no one shall be exposed to the arbitrary will of theGovernment. Dicey gave three meanings to rule of law : Absence ofarbitrary power, equality before the law or the equal subjection of all classesto the ordinary law of the land administered by ordinary law courts and that

S.L.R.] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 393

the Constitution is not the source but the consequence of the rights ofindividuals, as defined and enforced by the Courts. The second meaninggrew out of Dicey's unsound dislike of the French Droit Administratifwhich he regarded "as a misfortune inflicted upon the benighted folk acrossthe Channel." [See Judicial Review of Administrative Action S. A. dsSmith, (1968) p. 5.] Indeed, so great was his influence on the thought of theday that as recently as in 1935 Lord Hewart, the Lord Chief Justice ofEngland, dismissed the term "administrative law" as "continental Jargon".The third meaning is hardly apposite in the context of our written Consti-tution for, in India, the Constitution is the source of all rights and obliga-tions. We may not therefore rely wholly on Dicey's exposition of the ruleof law but ever since the second World War, the rule has come to acquirea positive content in all democratic countries. [See Wade and PhillipsConstitutional Law (Sixth Ed.), pp. 70—73]. The International Commissionof Jurists, .which has a consultative status under the United Nations, heldits Congress in Delhi in 1959 where lawyers, judges and law teachers repre-senting fifty-three countries affirmed that the rule of law is a dynamic con-cept which should be employed to safeguard and advance the political andcivil rights of the individual in a free society. One of the committees ofthat Congress emphasised that no law should subject any individual todiscriminatory treatment. These principles must vary from country tocountry depending upon the provisions of its Constitution and indeed uponwhether there exists a written Constitution. As it has been said in a lightervein, to show the supremacy of the Parliament, the charm of the EnglishConstitution is that "it does not exist". Our Constitution exists andmust continue to exist. It guarantees equality before law and the equalprotection of laws to everyone. The denial of such equality, as modifiedby the judicially evolved theory of classification, is the very negation cfrule of law.

The argument directed at showing the invalidation of the 39th Arnend-men on the ground that it abrogates the principle of 'Separation of Powers'is replete with many possibilities since it has several sidelights. But I willbe brief since I have already held that clauses (4) and (5) of Article 329Aare unconstitutional. I cannot regard the point as unnecessary for mydetermination since the point seems to me of great constitutional importance.

The Indian Constitution was enacted by the Constituent Assembly inthe backdrop of the National struggle for Independence. The Indianpeople had gone through a travail and on the attainment of Independence,the country had to face unique problems which had not confronted otherfederations like America, Australia, Canada or Switzerland. These pro-blems had to be solved pragmatically and not by confining the country'spolitical structure within the straitjacket of a known or established for-mula. The Constituent Assembly, therefore, pursued the policy of pickand choose to see what suited the genius of the Nation best. "This pro-cess produced new modification of established ideas, about the construc-tion of federal governments and their relations with the governments oftheir constituent units. The Assembly, in fact, produced a new kind offederalism to meet India's peculiar needs." [The Indian Constitution:Cornerstone of a Nation by Granville Austin, (1972) p. 186]. While intro-ducing the Draft Constitution in the Constituent Assembly, Dr. Ambedkarwho was one of the Chief architects of the Constitution said that our Con-stitution avoided the tight mould of federalism in which the AmericanConstitution was caught and could be "both unitary as well as federal ac-cording to the requirements of time and circumstances." We have what


may perhaps be described by the phrase, 'co-operative federalism', a con-cept different from the one in vogue when the federations of United Statesor of Australia were set up.

The American Constitution provides for a rigid separation of govern-mental powers into three basic divisions the executive, legislative and judi-cial. It is an essential principle of that Constitution that powers entrustedto one department should not be exercised by any other department. TheAustralian Constitution follows the same pattern of distribution of powers.Unlike these Constitutions, the Indian Constitution does not expressly vestthe three kinds of power in three different organs of the State. But theprinciple of separation of powers is not a magic formula for keeping thethree organs of the State within the strict confines of their functions. Asobserved by Cardozo, J. in his dissenting opinion in Panama RefiningCompany versus Ryan, (293 U. S. 388, 440), the principle of separation ofpowers 'is not a doctrinaire concept to be made use of with pedantic rigour.There must be sensible approximation, there must be elasticity of adjust-ment in response to the practical necessities of Government which cannotforesee today the developments of tomorrow in their nearly infinite variety".Thus, even in America, despite the theory that the legislature cannot dele-gate its power to the executive, a host of rules and regulation are passedby non-legislative bodies, which have been judicially recognized as valid.(See the judgment of Mukherjee, J. in the Delhi Laws Act case, 1951 S.C.R.747, 964).

The truth of the matter is that the existence, and the limitations onthe powers of the three departments of government are due to the normalprocess of specialisation in governmental business which becomes moreand more complex as civilization advances. The legislature must makelaws, the executive enforce them and the judiciary interpret them becausethey have in their respective fields acquired an expertise which makes themcompetent to discharge their duly appointed function. The Moghul Em-peror, Jehangir, was applauded as a reformist because soon after his acces-sion to the throne in 1605, he got a golden chain with sixty bells hung inhis palace so that the common man could pull it and draw the attentionof the Ruler to his grievances and sufferings. The most despotic Monarchin the modern world prefers to be armed, even if formally, with the opinionof his Judges on the grievances of his subjects.

The political usefulness of the doctrine of separation of powers is nowwidely recognized though a satisfactory definition of the three functions isdifficult to evolve. But the function of the Parliament is to make laws,not to decide cases. The British Parliament in its unquestioned supremacycould enact a legislation for the settlement of a dispute or it could, withimpunity, legislate for the boiling of the Bishop of Rochestor's cook. TheIndian Parliament will not direct that an accused in a pending case shallstand acquitted or that a suit shall sfand decreed. Princely India, in someparts, often did it.

The reason of this restraint is not that the Indian Constitution recogni-zes any rigid separation of powers. Plainly, it does not. The reason isthat the concentration of powers in any one organ may, by upsetting thatfine balance between the three organs, destroy the fundamental premises ofa democratic government to which we are pledged.


Sir Carleton K. Allen says in his 'Law and Orders' (1965 Ed. p. 8) thatneither in Montesquieu's analysis nor in Locke's are the governmentalpowers conceived as the familiar trinity of legislative, executive and judi-cial powers, Montesquieu's "separation" took the form not of impassablebarriers and unalterable frontiers, but of mutual restraints, or of what after-wards came to be known as "checks and balances", (p. 10), ihe threeorgans must act in concert, not that their respective functions should notever touch one another. If this limitation is respected and preserved, "itis impossible for that situation to arise which Locke and Montesquieuregarded, as the eclipse of liberty the monopoly, or the disproportionateaccumulation, of power in one sphere" (p. 19: Allen). In a federal systemwhich distributes powers between three co-ordinate branches of govern-ment, though not rigidly, disputes regarding the limits of constitutionalpower have to be resolved by courts and therefore, as observed by Paten,"the distinction between judicial and other powers may be vital to themaintenance of the Constitution itself". [A text-book of Jurisprudence(1964), page 295]. Power is of an encroaching nature, wrote Madison in'The Federalist'. The encroaching power which the Federalists feared mostwas the legislative power and that, according to Madison, is the dangerof all republics. Allen says that the history of both the United States andFrance has shown on many occasions that the fear was not unjustified(Alien, Law and Orders, p. 12).

I do not suggest that such an encroaching power will be pursuedrelentlessly or ruthlessly by our Parliament. But no Constitution can sur-vive without a conscious adherence to its fine checks and balances. Justas Courts ought not to enter into problems entwined in the "politicalthicket", Parliament must also respect the preserve of the Courts. Theprinciple of separation of powers is a principle of restraint which "has in itthe precept, innate in the prudence of self-preservation (even if history hasnot repeatedly brought it home), that discretion is the better part of valour".[Social Dimensions of Law and Justice—Julius Stone (1966), p. 668]. Courtshave, by and large, come to check their valorous propensities. In the nameof the Constitution the Parliament may not also turn its attention from theimportant task of legislation to deciding court cases for which it lacks theexpertise and the apparatus. If it gathers facts, it gathers facts of policy.If it records findings, it does so without a pleading and without framingany issues. And worst of all, if it decides a Court case, it decides withouthearing the parties and in defiance of the fundamental principles of naturaljustice.

The Parliament, by clause (4) of Article 329-A, has decided a matterof which the country's Courts were lawfully seized. Neither more nor less.It is true, as contended by the learned Attorney-General and Shri Sen, thatretrospective validation is a well known legislative process which has re-ceived the recognition of this Court in tax cases, ipare-emption cases, ten-ancy cases and a variety of other matters. In fact, such validation wasresorted to by the legislature and upheld by this Court in at least four 'election cases, the last of them being Kanta Kathuria v. Manak ChandSurana, [(1970) 2 S.C.R. 835]. But in all of these cases what the legisla-ture did was to change the law retrospectively so as to remove the reasonof disqualification, leaving it to the Courts to apply the amended law tothe decision of the particular case. In the instant case the Parliament haswithdrawn the application of all laws whatsover to the disputed electionand has taken upon itself to decide that the election is valid. Clause (5)


commands the Supreme Court to dispose of the appeal and the cross-appealin conformity with the provisions of clause (4) of Article 329-A, that is, inconformity with the "judgment" delivered by the Parliament. The "separa-tion of powers does not mean the equal balance of powers", says HaroldLaski, but the exercise by the legislature of what is purely and indubitably ajudicial function is impossible tQ sustain in the context even of our co-opera-tive federalism which contains no rigid distribution of powers but whichprovides a system of salutary checks and balances.

I find it contrary to the basic tenets of our Constitution to hold thatthe Amending Body is an amalgam of all powers—legislative, executiveand judicial. "Whatever pleases the emperor has the force of law" is notan article of democratic faith. The basis of our Constitution is a well-planned legal order the presuppositions of which are accepted by the peopleas determining the methods by which the functions of the government willbe discharged and the power of the State shall be used.

So much for the 39th Amendment. The argument regarding the in-validity of the Representation of the People (Amendment) Act, 58 of 1974,and of the Election Laws (Amendment) Act, 1975 has, however, no sub-stance. The Constitutional amendments may, on the ratio of the Funda-mental Rights case, be tested on the anvil of basic structure. But apartfrom the principle that a case is only an authority for what it decides, itdoes not logically follow from the majority judgment in the FundamentalRights case that ordinary legislation must also answer the same test as aconstitutional amendment. Ordinary laws have to answer two tests fortheir validity : (1) The law must be within the legislative competence ofthe legislature as defined and specified in Chapter I, Part XI of the Consti-tution and (2) it must not offend against the provisions of Articles 13(1)and (2) of the Constitution. 'Basic structure', by the majority judgment,is not a part of the fundamental rights nor indeed a provision of theConstitution. The theory of basic structure is woven out of the conspectusof the Constitution and the amending power is subjected to it because it isa constituent power. 'The power to amend the fundamental instrumentcannot carry with it the power to destroy its essential features'—this, inbrief, is the arch of the theory of basic structure. It is wholly out of placein matters relating to the validity of ordinary laws made under theConstitution.

Shri Shanti Bhushan thought it paradoxical that the higher powershould be subject to a limitation which will not operate upon a lowerpower. There is no paradox, because certain limitations operate upon thehigher power for the reason that it is a higher power. A constitutionalamendment has to be passed by a special majority and certain such amend-ments have to be ratified by the Legislatures of not less than one-half ofxhe States as provided by Article 368(2). An ordinary legislation can bepassed by a simple majority. The two powers though species of the same

• genus operate in different fields and are therefore ( subject to differentlimitations.

No objection can accordingly be taken to the constitutional validity ofthe two impugned Acts on the ground that they damage or destroy thebasic structure. The power to pass these Acts could be exerc'sed retros-pectively as much as prospectively.

E.L.R,] SMT. INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN 397'

These Acts effectively put an end to the two appeals before us forthe answer the totality of the objections which were raised by Shri RajNarain against the election of Srimati Indira Gandhi. The basis of thefindings on which the High Court held against the successful candidate isremoved by Act 40 of 1975 retrospectively. Were the law as it is underthe amendments introduced by that Act, the High Court could not haveheld that the election is vitiated by the two particular corrupt practices. Inregard to the cross-appeal field by Shri Raj Narain, Shri Shanti Bhushanthought that a part of it escapes through the crevices in the Act but I seeno substance in that contention either. I would like to add that the findingsrecorded by the High Court in favour of Srimati Indira Gandhi are amplyborne out by the evidence to which our attention was drawn briefly by thelearned counsel for the parties. The expenses incurred by the politicalparty together with the expenses incurred by her, are not shown to exceedthe prescribed ceiling. Apart from that, Act 58 of 1974 makes that issueacademic.

Finally, there is no merit in the contention that the constitutionalamendment is bad because it was passed when some members of the Parlia-ment were in detention. The legality of the detention orders cannot becanvassed in these appeals collaterally. And from a practical point of view,,the presence of 21 members of the Lok Sabha and 10 members of theRajya Sabha who were in detention, could not have made a difference tothe passing of the Amendment.

In the result. I hold that clauses (4) and (5) of Article 329-A are un-constitutional and therefore void. But for reasons aforesaid I allow CivilAppeal no. 887 of 1975 and dismiss Civil Appeal no. 909 of 1975. Therewill be no order as to costs throughout.

Appeal allowed.


VOLUME LVIISUBJECTS INDEX

•Corrupt practice—Prims Minister using Air Force aircraft during election cam-paign—effect of.

Shri Raj Narain v. Smt. Indira Nehru Gandhi and anr. (Allahabad High Court)

'Corrupt Practice—State Government officials assisting in construction of rostr-rums and making police and other security arrangements for public meetingsof candidate—if amauut to corrupt practice under Section 127(7)

Shri Raj Narain v. Smt Indira Nehru Gandhi and Anr. (Allahabad HighCourt)

Constitution of India—Basic structure of the constitution—meaning of—supremicy of constitution, ssparation of powers and fundamental rights—whsther form part of the basic structure.

Smt. Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India) .

Constitution of India—Article 31B and Ninth Schedule—Insertion of theRepresentation of the People Act, 1951 the Representation of the People(Amsndmsnt) Act, 1974 and the Election Laws (Amendment) Act 1975 inthe Ninth Schedule—whsthsr constitutionally valid.

Shrimati Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India) .

Constitution of India—Articles 79, 81, 85,105,122. 327 and 368—Compositionof Parliaiment—some members under preventive detention and as suchunable to attend and part'c'pate in the proceedings—Constitution (ThirtyninthAmendment) Act 1975 and the Election Laws (Amendment) Act 1975passed—whether valid—legality of the preventive detention of members—

£% whsihsr canbsqu^stioned or raised in election petitions.

\ Smt. Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India)

^Constitution of India—Article 329(4) and (5) inserted by the Constitution (Thirty-ninth Amendment) Act 1975—Exclusion of all existing laws relating to

'- election pjtitions in their application to Prime Minister or Speaker—validityof—whsther violative of basic schems of the constitution.

Smt. Indira Nehru Gandhi v. Shri Raj Narain Supreme Court of India)

snstitution of India—Article 368—power of Parliament to amend the con-stitution—whether Supreme power.


Evidence Act, 1872—S. 114—Non-oroduction of available evidence—presumptionof adverse inference—whether absolute and mandatory.

Smt. Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India)

Representation of the People Act, 1951—Election Laws (Amendment) Act 1975—R^frosj>;btiv3 operation affecting a concluded election—validity of—whether can bs challenged on grounds of unfairness or Inquality.


Representation of the People Act 1951—ss. 83(l)(b) and 123—Pleadings andEvidence—^allegation of corrupt parctice—insufficient particulars ofcorrupt practice—whsther evidence can be looked into for particulars.


PAGE

49

49

152

162

162

162

162

162

162

162

399

400i

PAGE

Representation of the People Act, 1951, section 116-B and B(2). Applicationseeking absolute stay of High Court order setting aside appellant's election—elements to be considered in exercise of discretion for granting stay—Effect of stay of operation of High Court order—condition of stay orderprohibiting appellant from participating in proceedings or voting in LokSabha as a member—sffect upon her separate rights as Minister.

Smt. Indira Nehru Gandhi v. Sri Raj Narain and another (Supreme Courtof India) 15Z

Representation of the People Act, 1951, S. 123 (1), (3), (5), (6) and (7). Candidatewhile Prims Minister using services as election agent of person who allegedly .-?resigned office as gazetted officer—oral acceptance of resignation—if Leffective—Prim"; Minister using Air Forceaircraft during election campaign— >,effect of. State Government officials assisting in constrution of rostrums ^and making police and otbsr security arrangements for public meetingsof candidate—if amount to corrupt practice under s. 127(7). Allegations ofcorrupt practice of bribing voters, their free convey ance in vehicles, expendi-ture in excess of prescribed limits—if proved.

Shri Raj Narain v. Smt. Indira Nehru Gandhi and anr. (Allahabad High Court). 49Representation of the People Act, 1951—Section 123(3)- use of or appealto religious symbol Cow and Calf symbol- whether amounts to corruptpractice.

Smt. Indira Nehru Gandhi v. Shri Raj Narain (Suprems Court of India) . 162

Representation of the People Act, 1951- Ss. 123(6), 77, 83(l)(b)— corruptpractice—incurring or authorising of expenditure in contravention ofs.77—meaning of expenditure incurred or authorised by a political party—Whether the cmditate is required to disavow or denounce such exp enditure.

Smt. Indira Nehru Gandi v. Shri Raj Narain (Supreme Court of India) . 162

Representation of the People Act, 1951, Sec. 123(6)—expenses incurred in excessof prescribed limit—by political party supporting a candidate—circums-tances in which corrupt practice. .

Kanwarlal Gupta v. Amur Nath Chawla and others (Supreme Court ofIndia)

Representation of the People Act, 1951—s. 123(7) and 100(1) (b)—obtaining orprocuring assistance from a government servant by a candidate—acts ofperson before he becomes a candidate—whether amount to corrupt practice—Section 79(b)—when does a person become a candidate for election-essentials of—whether mms rea or actus reus essential to constitute theoffence—arrangement made by the State Government for rostrums and loud-speakers in connection with the election tour of the Prime Minister who isa candidate at election—whether amounts to corrupt practice.

Smt. Indira Nehru Gandhi v. Shri Raj Narain (Supreme Court of India) •

Representation of the Peopele Act, 1951—s. 123(7)—Amendment by the elec-tion Laws (Amendment) Act 1975—Amendment merely clarifying theexisting state of law and not changing the law—validity of s. 123(7) as itstood before amendment not challenged—whether the challenge to thevalidity of the amedment permissible.

Smt. Indira Nehru Gandhi v. Shri Raj Afanwz (Supreme Court of India) . 162

Interpretation of statutes—provision widely worded—whether amplitude of .the provision can be curtailed in view of the facts of an individual case towhich it applies.


GIPN—S 4—345 E!c. Comm. (ND)/81—18-3-82—500.

election law reports, vol. lvii(1981)

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