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CASE ANALYSIS OF

ELECTION COMMISSION OF INDIA V. N.G. RANGA

BY

JAHNAVI TANEJA(Summer 2020 Intern, ProBono India)

4th Year Law Student of B.A.LL.B.(H)Amity Law School Noida, Amity University Uttar Pradesh

Contact: (+91) 8826801327Email: [email protected]

Submission Dated: 26 th April 2020

mailto:[email protected]

Case Analysis of Election Commission of India v. N.G. Ranga[AIR 1978 SC 1609]

BACKGROUND OF THE CASE

Election Commission of India v. N.G. Ranga [AIR 1978 SC 1609] is considered to be one

of India’s landmark cases vis-à-vis the field of Election Laws in India. This landmark

judgment finally came on August 17th 1978 after a long legal journey that began in 1969. This

journey was embarked upon by an earnest voter in the Srikakulam Constituency who curated

a petition to the President of India under the relevant provisions of the Constitution of India.

The gist of the timeline of the case such:

When this case reached the Supreme Court of India via the medium of appeal – the important

parties are such: The Election Commission of India (hereinafter, “the appellant”); Shri. N.G.

Ranga (hereinafter, “the Respondent No.1”); the Voter of Srikakulam constituency

(hereinafter, “the Respondent No.2”); and Shri. B. Rajagopalrao (hereinafter, “the

Respondent No.3”).

Respondent No. 2 who is a voter submitted a petition to the President of India under Articles

84, 101, 102, 103 and 104 of the Constitution of India alleging that Respondent No.1, a

returned candidate to the Lok Sabha on April 28th 1967 in a bye-election from that

constituency, had become subject to the disqualifications contained in Article 102 (1). The

President exercising his powers under the Constitution of India sought the opinion of the

appellant by an order dated May 18th 1968. The Appellant issues a notice dated June 6th 1968

to Respondent No.1 calling upon him to submit his reply to the allegations contained in

respondent’s petition to the President.

On June 26th 1968, Respondent No.1 therefore filed a Writ Petition in the Andhra Pradesh

High Court asking for a Writ of Prohibition forbidding the Appellant from taking further

action pursuant to the Notice dated June 6th 1968 and for a declaration that the appellant had

no jurisdiction to inquire into the petition submitted by Respondent No.2 to the President.

The High court allowed the petition and granted the Writ of Prohibition. It has granted to the

appellant a certificate of fitness under Article 133 (1) (c) of the Constitution.1

1Headnote, Election Commission of India v. N.G. Ranga,AIR 1978 SC 1609.

Andhra Pradesh High Court Appeal

Supreme Court of India

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About the Case: A Quick Glance –

Subject: President’s Opinion in deciding the question of disqualification of

election of a candidate in India

Court: Supreme Court of India

Decided On: August 17th 1978

Case Number: Civil Appeal No. 1265 of 1969

Judge: Y.V. Chandrachud (C.J.), A.D. Koshal, A.P. Sen, N.L. Untwalia, R.S.

Sark

Citations: AIR 1978 SC 1609; (1978) SCC 181; [1979] 1 SCR 210; 1978 (10)

LC 639 (SC)

Acts: Constitution of India – Articles 84, 101, 102, 103, 104, 133, 191, 192;

Representation of Peoples Act (1951) – Sections 10A, 146

Appellant: The Election Commission of India

Respondent: N.G. Ranga & Ors.

Appellant

Advocate:

S.V. Gupta (Attorney General of India); K.M. Bhatt; R.N. Sachthey

Respondent

Advocate:

P.A. Chowdhary; B. Kanta Rao

Cases Referred: Brundaben Nayak v. Election Commission of India & Anr.

Prior History: From the Judgment and Order i.e. dated January 3rd 1969 of the

Andhra Pradesh High Court in Writ Petition 2763 of 1968.

FACTS OF THE CASE

Respondent 1, Shri N. G. Ranga, was declared elected to the Lok Sabha on April 28, 1967

in a bye-election from Srikakulam Constituency, defeating Respondent No. 3, Shri B.

Rajagopalarao. The Election Commission of India, the appellant herein, called upon

respondent 1 by a notice dated July 7, 1967 to show cause why he should not be disqualified

for failure to lodge the account of his election expenses within the time and in the manner

required by law. Accepting the explanation submitted by Respondent 1, the appellant

condoned the delay caused in submitting the account of election expenses and sent a

communication dated August 167 1967 informing respondent 1 that it was decided not to take

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any further action in the matter.

Respondent 2, who is a voter in the Srikakulam constituency, thereafter submitted a

petition to the President of India under Articles 84, 101,102,103 and 104 of the

Constitution alleging that respondent 1 who was a sitting member of the Lok Sabha, had

become subject to the disqualification mentioned in Article 1 102(1). The President,

exercising his powers under Article 103(2) of the Constitution, sought the opinion of the

appellant by an order dated May 18, 1968. The appellant issued a notice dated June 6, 1968 to

respondent 1 calling upon him to submit his reply to the allegations contained in respondent

2's petition to the President.

On June 26, 1968 respondent l filed writ petition No. 2763 of 1968 in the High Court of

Andhra Pradesh asking for a Writ of Prohibition forbidding the appellant from taking further

steps pursuant to the June 6 notice and for a declaration that the appellant had no jurisdiction

to inquire into the petition submitted by respondent 2 to the President of India. By its

Judgment dated January 3, 1969 the High Court allowed the writ petition and issued a

writ of Prohibition as prayed for. It has granted to the Election Commission certificate

of fitness under Article 133(1) of the Constitution to appeal to this Court. 23

Timeline of Facts (follow serial number wise) –

1.)R1 declared elected to Lok Sabha by

bye-election on April 28th 1967

2.)E.C. issued notice to R1 on July 7th 1967

to show cause why he failed to lodge account

of election expenses

4.)R2 sent a petition to the President under

Art. 103 of the Constitution of India

3.)E.C. accepted R1’s explanation and

condoned the delay – dated August 1967

2Election Commission of India v. N.G. Ranga,AIR 1978 SC 1609.3Election Commission of India v. N.G. Ranga,AIR 1978 SC 1609; < https://indiankanoon.org/doc/1758290/?type=print > accessed on 17th April 2020.

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5.)By Order dated May 18th 1968, the

President sought E.C.’s opinion

6.)On June 6th 1968, the E.C. issues notice on

R1 to submit his reply to the said petition

8.)Andhra Pradesh High Court granted

R1’s prayer and issues Writ of Prohibition

+ granted E.C. the fitness certificate under

Art.133 (1) for Appeal.

7.)R1 filed a Writ Petition in the Andhra

Pradesh High Court, praying for a Writ of

Prohibition

9.)Case brought to the Supreme Court of India by way of Appeal by the Election

Commission (the appellant)

10.)Supreme Court of India concluded and delivered this landmark judgment on August

17th 1978

ISSUES IN ARGUMENTS OF THE PARTIES

I. Whether the appellant (the, Election Commission of India) had the jurisdiction to

issue the notice to Respondent No.1 calling upon him to submit his explanation in

regard to allegations contained in the petition presented by Respondent No.2 to the

President of India.

II. Whether on receiving the president’s communication or reference asking for its (i.e.

Election Commission of India) opinion, the appellant committed any error of law or

acted beyond its jurisdiction in seeking the explanation of Respondent No.1.

III. Whether Respondent No.1 had truly become subject to any of the disqualifications

mentioned in the clauses of Article 102 of the Constitution of India.

The Respondent No.1 (i.e. Shri. N.G. Ranga) denied the allegations made in the

petition and he also submitted that the allegations mentioned were ambiguous and

uncertain. In furtherance, he stated that some of the allegations mentioned in the

petition did not even constitute any corrupt practice within the meaning of the

Representation of the People Act, 1951.

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The Respondent No.1 moved the Andhra Pradesh High Court for a Writ Petition so as

to get Writ of Prohibition granted against the Election Commission’s notice to the

Respondent No.1 – it is because the Respondent No.1 argued that the Election

Commission has no jurisdiction to setup an inquiry against him, especially in lieu of

the Forty-second Amendment Act of 1976.

The Appellant (i.e. the Election Commission) had prayed for the grant of Appeal.

The Appellant had prayed for the dismissal of the Writ Petition filed in the Andhra

Pradesh High Court by the respondent.

The Appellant contended that by giving Respondent No.1 an opportunity to submit an

explanation, the appellant acted well within its constitutional as well as statutory

powers.

LEGAL ASPECTS INVOLVED: CRUX

The legal aspects involved in this landmark case are the provisions of the Constitution of

India along with the provisions of the Representation of People’s Act 1951.

The provisions of the Constitution of India on which this case stands are precisely as

follows – Article 84; Article 101(3)(a); Article 102(1) & (2); Article 103 (before and after the

Forty-Second Amendment Act of 1976); and Article 133(1).

The provisions of the Representation of People’s Act (1951) that are significantly involved

in this case are precisely as follows – Section 10A and Section 146 of the said Act.

LEGAL ASPECTS INVOLVED: DETAILED

The Constitution of India provides legal foundation for the making of special acts or

legislations in order to govern specific areas of law. The case at hand attracts the legal

provisions laid down in the Constitution of India regarding the Election Laws. Article 84 of

the India Constitution negatively lays down the general qualifications of a candidate to be fit

for the membership of Parliament (i.e. he would not be qualified to stand in the election if he

is not the citizen of India, etc) – thus, these are considered as condition precedent to be able

to stand as a candidate.

Article 101 of the Indian Constitution is titled “Vacation of seats” and the relevant portion of

this article to the case in hand is Article 101 (3) (a) i.e. “Vacation of seats – (3) If a member

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of either House of Parliament – (a) becomes subject to any of the disqualifications mentioned

in clause (1) or clause (2) of Article 102, or…”

Article 102 of the Constitution of India lists down certain actions that if undertaken by the

candidate shall render him disqualified for membership from the House of Parliament he has

been elected for – these conditions include, holding any office of profit under the

Government of India or any State; unsound mind; an undischarged insolvent; etc.

The central focus of the entire case when reached the doors of the Supreme Court by way of

appeal was on Article 103 and the amendment in it post 42nd Amendment Act of

1976.Given below is the text of Article 103 before the Amendment:

“103. Decisions on questions as to disqualification of members –

(1) If any question arises as to whether a member of either House of Parliament

has become subject to any disqualifications mentioned in clause (1) of Article

102, the question shall be referred for the decision of the President and his

decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the

opinion of the Election Commission and shall act according to such opinion.”

The President’s decision is final and the courts shall have no jurisdiction to question the

validity of the Presidents’ decision, except on the ground that he has acted otherwise than

according to the opinion of the Election Commission, for ‘finality’ can attach only to intra

vires exercise of the power, when a power is limited by conditions. The word ‘Shall’ in Cl.

(2) of the Present Art. Also indicates that the President’s obligation to act according to the

opinion of the Election Commission is absolute. 4

Given below is the text of Article 103 after the Amendment:

“103. Decision on questions as to disqualifications –

(1) If any question arises –

(a) as to whether a member of either House of Parliament has become subject

to any of the disqualifications mentioned in clause (1) of Article 102, or

(b) as to whether a person, found guilty of a corrupt practice at an election to a

House of Parliament under any law made by Parliament, shall be

disqualified for being chosen as, and for being, a member of either House of

4Anju Sindhu, “Decision on questions as to disqualification of members of Parliament: A Comparative Study with U.S.A., U.K., Australia and French Indian position” (2018) ISSN: 2455-4197 Volume 3 Issue 1 <www.academicjournal.in> accessed on 19th April 2020.

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Parliament, or of a House of the Legislature of a State, or as to the period

for which he shall be so disqualified, or as to the removal of, or the

reduction of the period of, such disqualification, the question shall be

referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall consult

the Election Commission and the Election Commission may, for this purpose,

make such inquiry as it thinks fit.”5

Prior to the 42nd Amendment Act 1976 – the President was bound to act according to the

opinion of the Election Commission. But, after the Amendment – it only requires the

President to “consult the Election Commission” before pronouncing his decision thus,

making Election Commission’s advice not binding on the President. Clause 2 of the amended

Article 103 also lays down the power of the Election Commission to “make such inquiry as it

thinks fit” – thus, directly implying the power to conduct inquiries in order to gather

consultation to be given to the President.

BRIEF COMPARISON WITH OTHER NATIONS

The Election laws of various countries may differ slightly or drastically – but one thing

conspicuous from barely skimming through the election laws in general of various countries

is: almost all countries have laws in the arena of election addressing the “office of profit”

aspect.

Article 102 (1) (a) of the Constitution of India constitutes “office of profit” as a criteria fit

for disqualification of the candidate from the election.The law does not clearly define what

constitutes an office of profit but the definition has evolved over the years with

interpretations made in various court judgments. An office of profit has been interpreted to be

a position that brings to the office-holder some financial gain, or advantage, or benefit. The

amount of such profit is immaterial. The essence of disqualification under the office of profit

law is if legislators holds an ‘office of profit’ under the government, they might be

susceptible to government influence, and may not discharge their constitutional mandate

fairly. The intent is that there should be no conflict between the duties and interests of an

5 Legislative Department, “The Constitution (Forty-Second Amendment) Act, 1976”, Ministry of Law and Justice of the Government of India < http://legislative.gov.in/constitution-forty-second-amendment-act-1976 > accessed on 19th April 2020.

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elected member. Hence, the office of profit law simply seeks to enforce a basic feature of the

Constitution- the principle of separation of power between the legislature and the executive.6

The Supreme Court ruling in 1964 held that the test for determining whether a person

holds an office of profit is the test of appointment. Several factors are considered in this

determination including factors such as: 7

(i) whether the government is the appointing authority,

(ii) whether the government has the power to terminate the appointment,

(iii) whether the government determines the remuneration,

(iv) what is the source of remuneration, and (v) the power that comes with the

position.

For instance, in the case of Jaya Bachchan,8 the then President of India A.P.J. Abdul Kalam

acted on the advice of the Election Commission of India to disqualify her as a member of the

Rajya Sabha (i.e. the Upper House) since she held the post of Chairperson of the Uttar

Pradesh Film Development Council.

Brief Overview of Provisions in Other Countries –

Unites States of America (U.S.A.):Under Art. I. Sec.5 (1) or the American

Constitution, similarly- ‘Each House shall be the judge of the elections, returns and

disqualifications of its own members”.Hence the power to decide both election

disputes and question relating to the disqualification of members belongs to each

House of Congress. In exercising this power each House acts as Judicial Tribunal,

having the power, to summon witnesses 9and to punish them for perjury.10

France: Article 25 of Constitution of French Republic of 1958 states – “An

Institutional Act shall determine the term for which each House is elected, the number

of its members, their allowances, the conditions of eligibility and the terms of

disqualification and of incompatibility with membership.

6Vibhor Relhan, “Explained: Law on holding ‘Office of Profit’” (PRS Legislative Research, 22 February 2018) <https://www.prsindia.org/theprsblog/explained-law-holding-‘office-profit’> accessed on 22nd April 2020.7Gurugobinda Basu vs. Sankari Prasad Ghosal & Ors. 1964 AIR 254, 1964 SCR (4) 311.8Jaya Bachchan vs. Union of India & Ors. Writ Petition (civil) 199 of 2006.9Barry vs. U.S. (1929) 279 US 597 (616).10Loney, in re, (1980) 134 US 372.

9

https://www.prsindia.org/theprsblog/explained-law-holding-'office-profit


It shall likewise determine the manner of election of those persons called upon to

replace Members of the National Assembly or Senators whose seats have become

vacant, until the general or partial renewal by election of the House in which they sat,

or have been temporarily replaced on account of having accepted a governmental

position.

An independent commission, whose composition and rules of organization and

operation shall be set down by statute, shall express an opinion, by public

announcement, on the Government and Private Members' Bills defining the

constituencies for the election of members of the National Assembly, or modifying

the distribution of the seats of members of the National Assembly or of Senators.”11

Australia: Article 47 of the Australian Constitution pertains to the provision of

“disputed elections” stating – “Until the Parliament otherwise provides, any question

respecting the qualification of a senator or of a member of the House of

Representatives, or respecting a vacancy in either House of the Parliament, and any

question of a disputed election to either House, shall be determined by the House in

which the question arises.”12

Japan: Article 55 of the Constitution of Japan states – “Each House shall judge

disputes related to qualifications of its members. However, in order to deny a seat to

any member, it is necessary to pass a resolution by a majority of two-thirds or more of

the members present.”13

United Kingdom (U.K.): Either House of the Parliament has the right to provide for

its due composition and to decide questions as to the legal qualifications of its

members. If it is alleged that any candidate who has been elected is disqualified, his

right to sit and vote in the House of Commons must be decided by the House

itself.14As regards the disqualifications arising under the House of Commons

11 The Constitution of French Republic (1958), < https://www.conseil-constitutionnel.fr/en/constitution-of-4-october-1958 > accessed on 20th April 2020. 12Commonwealth of Australia Constitution Act; < https://www.aph.gov.au/about_parliament/senate/powers_practice_n_procedures/~/link.aspx?_id=074367F0015D42C2B005207F5642376A&_z=z#chapter-01_part-04_47 > accessed on 20th April 2020.13The Constitution of Japan (1946), < https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html > accessed on 19th April 2020.14Anju Sindhu, “Decision on questions as to disqualification of members of Parliament: A Comparative Study with U.S.A., U.K., Australia and French Indian position” (2018) ISSN: 2455-4197 Volume 3 Issue 1 <www.academicjournal.in> accessed on 20th April 2020.

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Disqualifications Act 1957, the house itself has been empowered to give relief in

proper cases, where disqualification is alleged in any of the House. The Act lays down

certain rights and duties, and comprehensively puts together the election laws of the

nation.

“The House has given over to the Law Courts the right to determine controverted

elections: that is to say, which are called in question on the ground that a candidate,

otherwise properly qualified for a seat, has been, returned in an informal manner, or

by reasons who are not entitled to vote, or by votes procured through improper

inducements. But it retains the right to pronounce at once on the existence of legal

disqualifications in those returned to Parliament, and will declare a seat to be vacant,

if members returned is subject to such disqualifications, without awaiting the return to

be questioned by persons interested in the matter.” 15

This segment has provided a brief peek into the ways different countries have adopted to deal

with disrupted elections or disqualifications and vacancies. The author has observed that

these countries (akin India) have separate legislations or acts that comprehensively governs

the election procedure country-wide and have a mention in the Constitution (akin India)

signifying the rule of the law. It is the Author’s observation from which she deems fit to

appreciate the model set by the Indian legal system in governing the elections vis-à-vis

qualifications, disqualifications, vacancies and the like – India’s model seems to follow the

stead of separation of law to motivate the supervisors (for instance, Election Commission of

India), and the elected candidates (for instance, the MPs etc.) to work without fear or favour.

JUDGMENT IN A GLANCE

The President acted both in the exercise of the constitutional authority and in the

discharge of his constitutional obligation in referring the question raised by

Respondent No.2’s petition for the opinion of the appellant (i.e. the Election

Commission of India).

The Representation of the People’s Act 1951 confers extensive powers on the

Election Commission in regard to inquiries pertaining to the questions referred by the

President for its opinion.

15Michael Davitt’s case, (1882) 137 CJ 140; Wenslydale Peerage Case (1856) 140 Hans 3.

11


Article 103 (1) gives finality to the President’s decision which under the provision

before the 1976 Amendment Act had to be in conformity with the opinion of the

Election Commission.

A declaration of disqualification made in pursuance of power conferred by Section

10A is a declaration made by the Election Commission under a law made by

Parliament – it thereby, attracts Article 102(1)(e) and consequently Article 103(1) of

the Constitution of India.

Appeal prayed by the Election Commission allowed and directed the dismissal of the

petition filed by the Respondent in the high Court.

CRITICAL OVERVIEW

The Election Commission of India v. N.G. Ranga (1978) is one of the cases that reached the

Supreme Court of India by way of exercise of Appellate Jurisdiction. Thus, it is pertinent to

note the thread of instances that form a timeline of the case signifying its journey from the

lower courts to the apex court of the nation. Sans keeping in loop all the factors, a critical

analysis of the final verdict shall be grossly incomplete.

Before Appeal: The case surely stands at the shoulders of the essential fact that the voter of

the Srikakulam Constituency (i.e. Respondent No.2) presented a petition to the President

under Article 103 of the Constitution of India. But, there is another important case titled B.R.

Rao vs. N.G. Ranga16(the fact to catch hold of here is : B.R. Rao is the Respondent No.3 in

the present case under analysis).This case gives us the answer to the issue – whether the

Respondent No.1 (i.e. N.G. Ranga) had truly become subject to any of the disqualifications.

Upon appreciation of evidences of the witnesses presented – a charge of corrupt practice

under the Representation of the People Act 1951 was not clearly and cogently established. It

was further stated that the charge cannot be held established merely on the basis of suspicion,

or preponderance of probabilities. Thus, this issue was decided in the favor of the Respondent

No.1 as the Supreme Court stated, “We see no reason to disagree with the view of the High

Court on the evidence.”17

16B.R. Rao vs. N.G. Ranga; Civil Appeal No.1486 of 1968.17B.R. Rao vs. N.G. Ranga; Civil Appeal No.1486 of 1968.

12


42 nd Amendment Act: The role of the 42nd Amendment Act 1976 is significant to this case –

because amongst many changes it brought changes to Article 103 of the Constitution of India

as well. Prior to the amendment, the article made it compulsory for the President to act

according to the advice of the Election Commission, but post the amendment the stance has

changed to mere “consultation”. The Respondent No.1 argued that Election Commission has

acted beyond its jurisdiction and thus should be stopped – it’s the clauses of Article 103 that

form a befitting counter to the same.

Precedent Referred: In the instant case, the apex court while delivering their judgment

referred to the significant Brundaban Nayak v. Election Commission of India &Anr.18– the

case was of the similar facts of how when it runs parallel in the state, Governor’s decision is

final and binding, the words reproduced in the judgment to reiterate the authority of the

Election Commission were: “Election Commission which in substance was decisive and

therefore it was legitimate to assume that, when the complaint received by the Governor was

forwarded by him to the Election Commission, the latter had the power and the jurisdiction to

go into the matter which meant that it had the authority to issue notice to the person against

whom the complaint was made, calling him to file his statement and produce evidence in

support of his case.”19

Essence: The lesson or take-away from this case is the stance that sets in as the correct

interpretation of the clauses of Article 103 (both prior and post the Amendment). It is thereby

reiterated that Election Commission has extensive powers under the special acts of the land

and also constitutional obligation of consultation to the President when asked for its opinion

from expertise.

REFERENCES

Election Commission of India v. N.G. Ranga, AIR 1978 SC 1609.

The Constitution of India (1950).

18 AIR 1965 SC 1892; [1965] 3 SCR 53.19Brundaban Nayak vs. Election Commission of India & Anr., AIR 1965 SC 1892; [1965] 3 SCR 53.

13


Vibhor Relhan, “Explained: Law on holding ‘Office of Profit’”; PRS Legislative

Research.

Gurugobinda Basu vs. Sankari Prasad Ghosal & Ors. 1964 AIR 254, 1964 SCR (4)

311.

Jaya Bachchan vs. Union of India & Ors. Writ Petition (civil) 199 of 2006.

Anju Sindhu, “Decision on questions as to disqualification of members of Parliament:

A Comparative Study with U.S.A., U.K., Australia and French Indian position”

(2018) International Journal of Academic Research and Development; Volume 3

Issue 1; ISSN: 2455-4197.

Legislative Department, “The Constitution (Forty-Second Amendment) Act, 1976”,

Ministry of Law and Justice of the Government of India.

Barry vs. U.S. (1929) 279 US 597 (616).

Loney, in re, (1980) 134 US 372.

The Constitution of French Republic (1958).

Commonwealth of Australia Constitution Act.

The Constitution of Japan (1946).

Michael Davitt’s case, (1882) 137 CJ 140; Wenslydale Peerage Case (1856) 140

Hans 3.

B.R. Rao vs. N.G. Ranga; Civil Appeal No.1486 of 1968.

Brundaban Nayak vs. Election Commission of India & Anr., AIR 1965 SC 1892;

[1965] 3 SCR 53.

ABOUT THE AUTHOR

14


Jahnavi Taneja is a Student of Law at the Amity Law School Noida, AUUP. She is a

staunch believer of the holistic development approach thereby supports working meticulously

to contribute to the bigger picture of humanity. She considers herself a student of law and life

and her interests lie greatly in Family Law, Constitutional Law and International Law. She is

inherently a strong, passionate and committed individual, willing to give back to the

community and striving to unlock the best version of her life.

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