N.P. Ponnuswami Vs. Returning Officer,
Namakkal Constituency & Ors [1952] INSC 2 (21 January 1952)
FAZAL ALI, SAIYID SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA
CITATION: 1952 AIR 64 1952 SCR 218
CITATOR INFO :
RF 1954 SC 520 (6) R 1955 SC 233 (6) RF 1957
SC 694 (7) R 1957 SC 871 (4) D 1967 SC 669 (17) MV 1971 SC 530 (373) R 1973
SC2464 (3) R 1974 SC 480 (19) RF 1974 SC1185 (16) R 1975 SC1708 (11) R 1975
SC2140 (3,4,5) RF 1975 SC2299 (268) E&F 1978 SC 851
(10,22,24,25,26,27,29,30,61 RF 1980 SC1362 (23) RF 1981 SC 547 (7) R 1982 SC
983 (7) R 1983 SC 558 (11) R 1984 SC 135 (8) F 1984 SC 921 (19,20) E&R 1985
SC1233 (24,25,26) RF 1986 SC 103 (12) R 1988 SC 61 (6) RF 1988 SC 616
(6,8,9,10) RF 1988 SC 915 (9,15)
ACT:
Constitution of India, Arts. 226, 324 to
329--Representation of the People Act, 1951, ss. 36, 80--Election to
Legislatures--Rejection of nomination paper--Application to High Court for writ
of certiorari--Maintainability--Jurisdiction of High Court--Meaning of
"election" and "questioning election"--Policy of
Legislature with regard to elections--Special remedies.
HEADNOTE:
Article 329 (b) of the Constitution of India
provides that "no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called in question
except by an election petition presented to such authority and in such manner
as may be provided for, by or under any law made by the appropriate
Legislature." The Representation of the People Act, 1951, which made
detailed provisions for election to the various Legislatures of the country
also contains a provision (sec. 80) that no election shall be called in
question except by an election petition presented in accordance with the
provisions of the Act.
The appellant, who was a candidate for
election to the Legislative Assembly of the State of Madras and whose nomination
paper was rejected by the Returning Officer, applied to the High Court of
Madras under article 226 of the Constitution for a writ of certiorari to quash
the order of the Returning Officer rejecting his nomination paper and to direct
the Returning Officer to include his name in the list of valid nominations to
be published:
Held by the Full Court (PATANJALI SASTRI,
C.J., FAZL ALl, MAHAJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.) that in
view of the provisions of article 329 (b) of the Constitution and sec. 80 of
the Representation of the People Act, 1951, the High Court had no jurisdiction
to interfere with the order of the Returning Officer.
The word "election" has by long
usage in connection with the process of selection of proper representatives in
democratic institutions acquired both a wide and a narrow meaning. In the 219
narrow sense it is used to mean the final selection of a candidate which may
embrace the result of the poll when there is polling, or a particular candidate
being returned unopposed when there is no poll. In the wide sense, the word is
used to connote the entire process culminating in a candidate being declared
elected and it is in this wide sense that the word is used in Part XV of the
Constitution in which article 329 (b) occurs.
The scheme of Part XV of the Constitution and
the Representation of the People Act, 1951, seems to be that any matter which
has the effect of vitiating an election should be brought up only at the
appropriate stage in an appropriate manner before a special tribunal and should
not be brought up at an intermediate stage before any court. Under the election
law, the only significance which the rejection of a nomination paper has,
consists in the fact that it can be used as a ground to call the election in
question.
Article 329 (b) was apparently enacted to
prescribe the manner in which and the stage at which this ground, and other
grounds which may be raised under the law to call the election in question,
could be urged. It follows by necessary implication from the language of this
provision that those grounds cannot be urged in any other manner, at any other
stage and before any other court. If the grounds on which an election can be
called in question could be raised at an earlier stage and errors, if any, are
rectified, there will be no meaning in enacting a provision like article 329(b)
and in setting up a special tribunal. Any other meaning ascribed to the words
used in the article would lead to anomalies, which the Constitution could not
have contemplated, one of them being that conflicting views may be expressed by
the High Court at the pre-polling stage and by the election tribunal which is
to be an independent body, at the stage when the matter is brought up before
it. Therefore, questioning the rejection of a nomination paper is
"questioning the election" within the meaning of article ,329 (b) of
the Constitution and sec. 80 of the Representation of the People Act, 1951.
Having regard to the important functions
which the legislatures have to perform in democratic countries, it has always
been recognized to be a matter of first importance that elections should be
concluded as early as possible according to time schedule and all controversial
matters and all disputes arising out of elections should be postponed till
after the elections are over, so that the election proceedings may not be
unduly retarded or protracted. In conformity with this principle, the scheme of
the election law in this country as well as in England is that no significance
should be attached to anything which does not affect the "election";
and if any irregularities are committed while, it is in progress and they
belong to the category or class which. under the law by which elections are
governed, would have the effect of vitiating the "election" and
enable the person affected to 220 call it in question, they should be brought
up before a special tribunal by means of an election petition and not be made
the subject of a dispute before any court while the election is in progress.
The right to vote or stand as a candidate for
election is not a civil right but is a creature of statute or special law and
must be subject to the limitations imposed by it.
Strictly speaking, it is the sole right of
the Legislature to examine and determine all matters relating to the election
of its own members, and if the legislature takes it out of its own hands and
vests in a special tribunal an entirely new and unknown jurisdiction, that
special jurisdiction should be exercised in accordance with the law which
creates it.
Where a right or liability is created by a
statute which gives a special remedy for enforcing it, the remedy provided by
that statute only must be availed of.
Wolverhampton New Water Works Co. v.
Hawkesford [6 C.B. (N. S. ) 336], Neville v. London Express Newspaper Limited
[1910] A.C. 368), Attorney-General of Trinidad and Tobago v. Gordon Grant &
Co. ([1935] A.C. 532), Secretary of State v. Mask & Co. (44 C.W.N. 709),
Hurdutrai v. Offcial Assignee of Calcutta (52 C.W.N. 343), The berge v. Laudry
(1876, 2 App. Cas. 102) referred to.
Judgment of the High Court of Madras
affirmed.
CIVIL APPELLATE JURISDICTION: Case No. 351 of
1951.
Appeal under article 132 of the Constitution
from the Judgment and Order of the High Court of Judicature at Madras (Subba
Rao and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Petition No.
746 of 1951. The facts of the case and arguments of the counsel are set out in
detail in the judgment.
N. Rajagopal Iyengar, for the appellant.
R. Ganapathi Iyer, for the 1st respondent.
M.C. Setalvad, Attorney-General for India (G.
N. Joshi, with him) for the Union of India.
K.A. Chitale, Advocate-General of Madhya
Bharat (G. N. Joshi, with him) for the State of Madhya Bharat.
1952. January 21. Fazl Ali J. delivered
Judgment as follows. Patanjali Sastri C.J., Mahajan, Mukherjea, Das and
Chandrasekhara Aiyar JJ. agreed with Fazl Ali 5.
221 FAZL ALI J. --This is an appeal from an
order of the Madras High Court dismissing the petition of the appellant praying
for a writ of certiorari.
The appellant was one of the persons who had
filed nomination papers for election to the Madras Legislative Assembly from
the Namakkal Constituency in Salem district.
On the 28th November, 1951, the Returning
Officer for that constituency took up for scrutiny the nomination papers filed
by the various candidates and on the same day he rejected the appellant's
nomination paper on certain grounds which need not be set out as they are not
material to the point raised in this appeal. The appellant thereupon moved the
High Court under article 226 of the Constitution praying for a writ of of
certiorari to quash the order of the Returning Officer rejecting his nomination
paper and to direct the Returning Officer to include his name in the list of
valid nominations to be published. The High Court dismissed the appellant's
application on the ground that it had no jurisdiction to interfere with the
order of the Returning Officer by reason of the provisions of article 329(b) of
the Constitution. The appellant's contention in this appeal is that the view
expressed by the High Court is not correct, that the jurisdiction of the High
Court is not affected by article 329 (b) of the Constitution and that he was
entitled to a writ of certiorari in the circumstances of the case.
Broadly speaking, the arguments on which the
judgment of the High Court is assailed are two-fold :-(1) that the conclusion
arrived at by the High Court does not follow from the language of article 329
(b) of the Constitution, whether that article is read by itself or along with
the other articles in Part XV of the Constitution; and (2) that the anomalies
which will arise if the construction put by the High Court on article 329 (b)
is accepted, are so startling that the courts should lean in favour of the
construction put forward on behalf of the appellant.
29 222 The first argument which turns on the
construction of article 329 (b) requires serious consideration, but I think the
second argument can be disposed of briefly at the outset. It should be stated
that what the appellant chooses to call anomaly can be more appropriately
described as hardship or prejudice and what their nature will be has been
stated in forceful language by Wallace J. in Sarvothama Rao v. Chairman,
Municipal Council, Saidapet (1) in these words :-"I am quite clear that
any post-election remedy is wholly inadequate to afford the relief which the
petitioner seeks, namely, that this election, now published be stayed, until it
can be held with himself as a candidate. It is no consolation to tell him that
he can stand for some other election. It is no remedy to tell him that he must
let the election go on and then have it set aside by petition and have a fresh
election ordered. The fresh election may be under altogether different conditions
and may bring forward an array of fresh candidates. The petitioner can only
have his proper relief if the proposed election without him is stayed until his
rejected nomination is restored, and hence an injunction staying this election
was absolutely necessary, unless the relief asked for was to be denied him
altogether in limine. In most cases of this kind no doubt there will be
difficulty for the aggrieved party to get in his suit in time before the
threatened wrong is committed;
but when he has succeeded in so doing, the
Court cannot stultify itself by allowing the wrong which it is asked to prevent
to be actually consummated while it is engaged in trying the suit." These
observations however represent only one side of the picture and the same learned
Judge presented the other side of the picture in a subsequent case [Desi
Chettiar v. Chinnasami Chettiar(2)] in the following passage :"The
petitioner is not without his remedy. His remedy lies in an election petition
which we understand he has already put in. It is argued for him (1) (1924)
I.L.R. 47 mad. 585 at 600.
(2) (1928) A. I.R. Mad. 1271 at 1272.
that that remedy which merely allows him to
have set aside an election once held is not as efficacious as the one which
would enable him to stop the election altogether;and certain observations at p.
600 of Sarvothama Rao v. Chairman, Municipal Council, Saidapet(1) are quoted.
In the first place, we do not see how the mere fact that the petitioner cannot
get the election stopped and has his remedy only after it is over by an
election petition, will in itself confer on him any right to obtain a writ. In
the second place, these observations were directed to the consideration of the
propriety of an injunction in a civil suit, a matter with which we are not here
concerned. And finally it may. be observed that these remarks were made some
years ago when the practice of individuals coming forward to stop elections in
order that their own individual interest may be safeguarded was not so common.
It is clear that there is another side of the question to be considered,
namely, the inconvenience to the public administration of having elections and
the business of Local Boards held up while individuals prosecute their
individual grievances. We understand the election for the elective seats in
this Union has been held up since 31st May because of this petition, the result
being that the electors have been unable since then to have any representation
on the Board, and the Board is functioning, if indeed it is functioning, with a
mere nominated fraction of its total strength; and this state of affairs the
petitioner proposes to have continued until his own personal grievance is
satisfied." These observations which were made in regard to elections to
Local Boards will apply with greater force to elections to legislatures,
because it does not require much argument to show that in a country with a
democratic constitution in which the legislatures have to play a very important
role, it will lead to serious consequences, if the elections are unduly
proracted or obstructed. To this aspect of the matter I shall have to advert
later. but it is sufficient for the present purpose (1) (1924) I.L.R. 47 Mad,
585 at 600.
224 to state firstly that in England the hardship
and inconvenience which may be suffered by an individual candidate has not been
regarded as of sufficient weight to induce Parliament to make provision for
immediate relief and the aggrieved candidate has to wait until after the
election to challenge the validity of the rejection of his nomination paper,
and secondly, that the question of hardship or inconvenience is after all only
a secondary question, because if the construction put by the High Court on
article 329 (b) of the Constitution is found to be correct, the fact that such
construction will lead to hardship and inconvenience becomes irrelevant.
Article 329 is the last article in Part XV of
the Constitution, the heading of which is "Elections", and it runs as
follows :-"Notwithstanding anything in this Constitution-(a) the validity
of any law relating to the delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting to be made under article 327
or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament
or to the House or either House of the Legislature of a State shall be called
in question except by an election petition presented to such authority and in
such manner as may be provided for, by, or under any law made by the
appropriate Legislature." In construing this article, reference was made
by both parties in the course of their arguments to the other articles in the
same Part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides
for the constitution and appointment of an Election Commissioner to
superintend, direct and control ejections to the legislatures; article 325
prohibits discrimination against electors on the ground of religion, race,
caste or sex; article 326 provides for adult suffrage; article 327 empowers
Parliament to pass laws making provision with respect to all matters relating
to, or in connection with, elections to the legislatures, subject 225 to the
provisions of the Constitution; and article 328 is a complementary article
giving power to the State Legislature to make provision with respect to all
matters relating to, or in connection with, elections to the State Legislature.
A notable difference in the language used in
articles 327 and 328 on the one hand, and article 329 on the other, is that
while the first' two articles begin with the words" subject to the
provisions of this Constitution" the last article begins with the words
"notwithstanding anything in this Constitution." It was conceded at
the bar that the effect of this difference in language is that whereas any law
made by Parliament under article 327, or by the State Legislatures under
article 328, cannot exclude the jurisdiction of the High Court under article
226 of the Constitution, that jurisdiction is excluded in regard to matters
provided for in article 329.
Now, the main controversy in this appeal
centres round the meaning of the words "no election shall be called in
question except by an election petition" in article 329 (b), and the point
to be decided is whether questioning the action of the Returning Officer in
rejecting a nomination paper can be said to be comprehended within the words,
"no election shall be called in question." The appellant's case is
that questioning something which has happened before a candidate is declared
elected is not the same thing as questioning an election, and the arguments
advanced on his behalf in support of this construction were these:-(1) That the
word "election" as used in article 329 (b) means what it normally and
etymologically means, namely, the result of polling or the final selection of a
candidate;
(2) That the fact that an election petition
can be filed only after polling is over or after a candidate is declared
elected, and what is normally called in question by such petition is the final
result, bears out the contention that the word "election "can have no
other meaning in article (b) than the result of polling or the final selection
of a candidate;
226 (3) That the words "arising out of
or in connection with" which are used in article 324 (1) and the words
"with respect to all matters relating to, or in connection with"
which are used in articles 327 and s28, show that the framers of the
Constitution knew that it was necessary to use different language when
referring respectively to matters which happen prior to and after the result of
polling, and if they had intended to include the rejection of a nomination
paper within the ambit of the prohibition contained in article S29 (b) they
would have used similar language in that article and (4) That the action of the
Returning Officer in rejecting a nomination paper can be questioned before the
High Court under article 226 of the Constitution for the following
reason:--Scrutiny of nomination papers and their rejection are provided for in
section 36 of the Representation of the People Act, 1951. Parliament has made
this provision in exercise of the powers conferred on it by article 327 of the
Constitution which is "subject to the provisions of the
Constitution". Therefore, the action of the Returning Officer is subject
to the extraordinary jurisdiction of the High Court under article 226.
These arguments appear at first sight to be
quite impressive, but in my opinion there are weightier and basically more
important arguments in support of the view taken by the High Court. As we have
seen, the most important question for determination is the meaning to be given
to the word "election" in article 329 (b). That word has by long
usage in connection with the process of selection of proper representatives in
democratic institutions, acquired both a wide and a narrow meaning. In the
narrow sense, it is used to mean the final selection of a candidate which may
embrace the result of the poll when there is polling or a particular candidate
being returned unopposed when there is no poll. In the wide sense, the word is
used to connote the entire process culminating in a candidate being declared
227 elected. In Srinivasalu v. Kuppuswami(1), the learned Judges of the Madras
High Court after examining the question, expressed the opinion that the term
"election" may be taken to embrace the whole procedure whereby an
"elected member" is returned, whether or not it be found necessary to
take a poll. With this view, my brother, Maimjan J. expressed his agreement in
Sat Narain v. Hanuman Prasad (2); and I also find myself in agreement with it.
It seems to me that the word "election" has been used in Part XV of
the Constitution in the wide sense, that is to say, to connote the entire
procedure to be gone through to return a candidate to the legislature. The use
of the expression "conduct of elections" in article 324 specifically
points to the wide meaning, and that meaning can also be read consistently into
the other provisions which occur in Part XV including article 329 (b). That the
word "election" bears this wide meaning whenever we talk of elections
in a democratic country, is borne out by the fact that in most of the books on
the subject and in several cases dealing with the matter, one of the questions
mooted is, when the election begins. The subject is dealt with quite concisely
in Halsbury's Laws of England in the following passage(s) under the
heading" Commencement of the Election ":-"Although the first
formal step in every election is the issue of the writ, the election is
considered for some purposes to begin at an earlier date. It is a question of
fact in each case when an election begins in such a way as to make the parties
concerned responsible for breaches of election law, the test being whether the
contest is "reasonably imminent". Neither the issue of the writ nor
the publication of the notice of election can be looked to as fixing the date
when an election begins from this point of view.
Nor, again, does the nomination day afford
any criterion.
The election will usually begin at least
earlier than the issue of the writ. The question when the election begins must
be care (1) (1928) A.I.R. Mad. 253 at 255.
(2) (1945) A.I.R. Lah. 85.
(3) See page 237 of Halsbury's Laws of
England, 2nd edition, Volume 12.
228 fully distinguished from that as to when
"the conduct and management of" an election may be said to begin.
Again, the question as to when a particular person commences to be a candidate
is a question to be considered in each case." The discussion in this
passage makes it clear that the word ' 'election" can be and has been
appropriately used with reference to the entire process which consists of
several stages and embraces many steps, some of which may have an important
bearing on the result of the process.
The next important question to be considered
is what is meant by the words "no election shall be called in question".
A reference to any treatise on elections in England will show that an election
proceeding in that country is liable to be assailed on very limited grounds,
one of them being the improper rejection of a nomination paper. The law with
which we are concerned is not materially different, and we find that in section
100 of the Representation of the People Act, 1951, one of the grounds for
declaring an election to be void is the improper rejection of a nomination
paper.
The question now arises whether the law of
elections in this country contemplates that there should be two attacks on
matters connected with election proceedings, one while they are going on by
invoking the extraordinary jurisdiction of the High Court under article 226 of
the Constitution (the ordinary jurisdiction of the courts having been expressly
excluded), and another after they have been completed by means of an election
petition. In my opinion, to affirm such a position would be contrary to the
scheme of Part XV of the Constitution and the Representation of the People Act,
which, as I shall point out later, seems to be that any matter which has the
effect of vitiating an election should be brought up only at the appropriate
stage in an appropriate manner before a special tribunal and should not be
brought up at an intermediate stage before any court. It seems to me that under
the election law, the only significance which the rejection of 229 a nomination
paper has consists in the fact that it can be used as a ground to call the
election in question. Article 329(b)was apparently enacted to prescribe the
manner in which and the stage at which this ground, and other grounds which may
be raised under the law to call the election in question could be urged. I
think it follows by necessary implication from the language of this provision that
those grounds cannot be urged in any other manner, at any other stage and
before any other court. If the grounds on which an election can be called in
question could be raised at an earlier stage and errors, if any, are rectified,
there will be no meaning in enacting a provision like article 329 (b) and in
setting up a special tribunal. Any other meaning ascribed to the words used in
the article would lead to anomalies, which the Constitution could not have
contemplated, one of them being that conflicting views may be expressed by the
High Court at the pre-polling stage and by the election tribunal, which is to
be an independent body, at the stage when the matter is brought up before it.
I think that a brief examination of the
scheme of Part XV of the Constitution and the Representation of the People Act,
1951, will show that the construction I have suggested is the correct one.
Broadly speaking, before an election machinery can be brought into operation,
there are three requisites which require to be attended to, namely, (1) there
should be a set of laws and rules making provisions with respect to all matters
relating to, or in connection with, elections, and it should be decided as to
how these laws and rules are to be made;(2) there should be an executive
charged with the duty of securing the due conduct of elections; and (3)there
should be a judicial tribunal to deal with disputes arising out of or in
connection with elections. Articles 327 and 328 deal with the first of these
requisites, article 324 with the second and article 329 with the third
requisite. The other two articles in Part XV, viz, articles 325 and 326, deal
with two matters of principle to which the Constitution-framers have attached
much importance. They 30 230 are :--(1) prohibition against discrimination in
the preparation of, or eligibility for inclusion in, the electoral rolls, on
grounds of religion, race, caste, sex or any of them; and (2) adult suffrage.
Part XV of the Constitution is really a code in itself providing the entire
ground-work for enacting appropriate laws and setting up suitable machinery for
the conduct of elections.
The Representation of the People Act, 1951,
which was passed by Parliament under article 327 of the Constitution.
makes detailed provisions in regard to all
matters and all stages connected with elections to the various legislatures in
this country. That Act is divided into II parts, and it is interesting to see
the wide variety of subjects they deal with. Part Il deals with "the qualifications
and disqualifications for membership", Part III deals with the notification
of General Elections, Part IV provides for the administrative machinery for the
conduct of elections, and Part V makes provisions for the actual conduct of
elections and deals with such matters as presentation of nomination papers.
requirements of a valid nomination, scrutiny of nominations, etc., and
procedure for polling and counting of votes. Part VI deals with disputes
regarding elections and provides for the manner of presentation of election
petitions, the constitution of election tribunals and the trial of election
petitions. Part VII outlines the various corrupt and illegal practices which
may affect the elections, and electoral offences. Obviously, the Act is a self
contained enactment so far as elections are concerned, which means that
whenever we have to ascertain the true position in regard to any matter
connected with elections, we have only to look at the Act and the rules made
there under. The provisions of the Act which are material to the present
discussion are sections 80, 100, 105 and 170, and the provisions of Chapter II
of Part IV dealing with the form of election petitions, their contents and the
reliefs which may be sought in them. Section 80, which is drafted in almost the
same language as article 329 (b), provides that "no election shall be
called in question except by an election 231 petition presented in accordance
with the provisions of this Part". Section 100, as we have already seen,
provides for the grounds on which an election may be called in question, one of
which is the improper rejection of a nomination paper. Section 105 says that
"every order of the Tribunal made under this Act shall be final and
conclusive". Section 170 provides that "no civil court shall have
jurisdiction to question the legality of any action taken or of any decision
given by the Returning Officer or by any other person appointed under this Act
in connection with an election." These are the main provisions regarding
election matters being judicially dealt with, and it should be noted that there
is no provision anywhere to the effect that anything connected with elections
can be questioned at an intermediate stage.
It is now well-recognized that where a right
or liability is created by a statute which gives a special remedy for enforcing
it, the remedy provided by that statute only must be availed of. This rule was
stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v.
Hawkesford(1) in the following passage :"There are three classes of cases
in which a liability may be established founded upon statute. One is, where
there was a liability existing at common law and that liability is affirmed by
a statute which gives a special and peculiar form of remedy different from the
remedy which existed at common law; there, unless the statute contains words
which expressly or by necessary implication exclude the common law remedy, the
party suing has his election to pursue either that or the statutory remedy. The
second class of cases is, where the statute gives the right to suemerely, but
provides no particular form of remedy: there, the party can only proceed by
action at common law. But there is a third class, viz., where a liability not
existing at common law is created by a statute which at the same time gives a
special and particular remedy for enforcing it............
The remedy provided by the statute must be
followed, and it is not (1) 6 C.B. (N.S.) 336, 356.
232 competent to the party to pursue the
course applicable to cases of the second class. The form given by the statute
must be adopted and adhered to." The rule laid down in this passage was
approved by the House of Lords in Neville v. London Express Newspaper Limited(1)
and has been reaffirmed by the Privy Council in Attorney-General of Trinidad
and Tobago v. Gordon Grant & Co.(2) and Secretary of State v. Mask &
Co.(a); and it has also been held to be equally applicable to enforcement of
rights: see Hurdutrai v. Official Assignee of Calcutta(4).
That being so, I think it will be a fair
inference from the provisions of the Representation of the People Act to state
that the Act provides for only one remedy, that remedy being by an election
petition to be presented after the election is over, and there is no remedy
provided at any intermediate stage.
It was argued that since the Representation
of the People Act was enacted subject to the provisions of the Constitution, it
cannot bar the jurisdiction of the High Court to issue writs under article 226
of the Constitution.
This argument however is completely shut out
by reading the Act along with article 329 (b). It will be noticed that the
language used in that article and in section 80 of the Act is almost identical,
with this difference only that the article is preceded by the words
"notwithstanding anything in this Constitution". I think that those
words are quite apt to exclude the jurisdiction of the High Court to deal with
any matter which may arise while the elections are in progress.
It may be stated that section 107(1) of the
Representation of People Act, 1949 (12 & 13 Geo. 6, c. 68) in England is
drafted almost in the same language as article 329(b). That section runs thus :"No
parliamentary election and no return to Parliament shall be questioned except
by a petition complaining of an undue election or undue return (hereinafter
referred to as a parliamentary election petition) presented in accordance with
this Part of this Act." (1) [1919] A.C. 368. (3) (1940) 44 C.W.N. 709.
(2) [1935] A.C. 532. (4) (1948) 52 C.W.N.
343, 349.
233 It appears that similar language was used
in the earlier statutes, and it is noteworthy that it has never been held in
England that the improper rejection of a nomination paper can be the subject of
a writ of certiorari or mandamus. On the other hand, it was conceded at the bar
that the question of improper rejection of a nomination paper has always been
brought up in that country before the appropriate tribunal by means of an
election petition after the conclusion of the election. It is true that there
is no direct decision holding that the words used in the relevant provisions
exclude the jurisdiction of the High Court to issue appropriate prerogative
writs at an intermediate stage of the election, but the total absence of any
such decision can be accounted for only on the view that the provisions in
question have been generally understood to have that effect.
Our attention was drawn to rule 13 of the
rules appended to the Ballot Act of 1872 and a similar rule in the Parliamentary
Elections Rules of 1949, providing that the decision of the Returning Officer
disallowing an objection to a nomination paper shall be final, but allowing the
same shall be subject to reversal on a petition questioning the election or
return. These rules however do not affect the main argument. I think it can be
legitimately stated that if words similar to those used in article 329 (b) have
been consistently treated in England as words apt to exclude the jurisdiction
of the courts including the High Court, the same consequence must follow from
the words used in article 329 (b) of the Constitution. The words
"notwithstanding anything in this Constitution" give to that article
the same wide and binding effect as a statute passed by a sovereign legislature
like the English Parliament.
It may be pointed out that article 329 (b)
must be read as complimentary to clause (a) of that article. Clause (a) bars
the jurisdiction of the courts with regard to such law as may be made under
articles 327 and 328 relating to the delimitation of constituencies or the
allotment of seats to such constituencies. It was conceded before us that
article 329 (b) ousts the jurisdiction of the courts with regard to matters 234
arising between the commencement of the polling and the final selection. The
question which has to be asked is what conceivable reason the legislature could
have had to leave only matters connected with nominations subject to the
jurisdiction of the High Court under article 226 of the Constitution. If Part
XV of the Constitution is a code by itself, i. e., it creates rights and
provides for their enforcement by a special tribunal to the exclusion of all
courts including the High Court, there can be no reason for assuming that the
Constitution left one small part of the election process to be made the
subject-matter of contest before the High Courts and thereby upset the
time-schedule of the elections The more reasonable view seems to be that
article 329 covers all "electoral matters".
The conclusions which I have arrived at may
be summed up briefly as follows :-(1) Having regard to the important functions
which the legislatures have to perform in democratic countries, it has always
been recognized to be a matter of first importance that elections should be
concluded as early as possible according to time schedule and all controversial
matters and all disputes arising out of elections should be postponed till
after the elections are over, so that the election proceedings may not be
unduly retarded or protracted.
(2) In conformity with this principle, the
scheme the election law in this country as well as in England is that no
significance should be attached to anything which does not affect the
"election"; and if any irregularities are committed while it is in
progress and they belong to the category or class which, under the law by which
elections are governed, would have the effect of vitiating the' 'election"
and enable the person affected to call it in question, they should be brought
up before a special tribunal by means of an election petition and not be made
the subject of a dispute before any court while the election is in progress.
It will be useful at this stage to refer to
the decision the Privy Council in Theberge v. Laudry(1). The (1) (1876) 2 App.
Cas. 102.
235 petitioner in that case having been
declared duly elected a member to represent an electoral district in the
Legislative Assembly of the Province of Quebec, his election was afterwards, on
petition, declared null and void by judgment of the Superior Court, under the
Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt
practices both personally and by his agents. Thereupon, he applied for special
leave to appeal to Her Majesty in Council, but it was refused on the ground
that the fair construction of the Act of 1875 and the Act of 1872 which
preceded it providing among other things that the judgment of the Superior
Court "shall not be susceptible of appeal" was that it was the
intention of the legislature to create a tribunal for the purpose of trying
election petitions in a manner which should make its decision final for all
purposes, and should not annex to it the incident of its judgment being
reviewed by the Crown under its prerogative. In delivering the judgment of the
Privy Council, Lord Cairns observed as follows :-"These two Acts of
Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character.
They are not Acts constituting or providing for the decision of mere ordinary
civil rights; they are Acts creating an entirely new, and up to that time
unknown, jurisdiction in a particular Court...... for the purpose of taking
out, with its own consent, of the Legislative Assembly, and vesting in that Court,
that very peculiar jurisdiction which, up to that time, had existed in the
Legislative Assembly of deciding election petitions, and determining the:
status of those who claimed to be members of the Legislative Assembly. A
jurisdiction of that kind is extremely special, and one of the obvious
incidents or consequences of such a jurisdiction must be that the jurisdiction,
by whomsoever it is to be exercised, should be exercised in a way that should
as soon as possible become conclusive; and enable the constitution of the
Legislative Assembly to be distinctly and speedily known." 236 After
dealing with certain other matters, the Lord ChanCellor proceeded to make the
following further observations :-"Now, the subject-matter, as has been
said, of the legislation is extremely peculiar. It concerns the rights and
privileges of the electors and of the Legislative Assembly to which they elect
members. Those rights and privileges have always in every colony, following the
example of the mother country, been jealously maintained and guarded by the
Legislative Assembly. Above all, they have been looked upon as rights and
privileges which pertain to the Legislative Assembly, in complete independence
of the Crown, so far as they properly exist. And it would be a result somewhat
surprising, and hardly in consonance with the general scheme of the
legislation, if, with regard to rights and privileges of this kind, it were to
be found that in the last resort the determination of them no longer belonged
to the Legislative Assembly, no longer belonged to the Superior Court which the
Legislative Assembly had put in its place, but belonged to the Crown in
Council, with the advice of the advisers of the Crown at home, to be determined
without reference either to the judgment of the Legislative Assembly, or of
that Court which the Legislative Assembly had substituted in its place."
The points which emerge from this decision may be stated as follows :-(1) The
right to vote or stand as a candidate for election is not a civil right but is
a creature of statute or special law and must be subject to the limitations
emposed by it.
(2) Strictly speaking, it is the sole right
of the Legislature to examine and determine all matters relating to the
election of its own members, and if the legislature takes it out of its own
hands and vests in a special tribunal an entirely new and unknown jurisdiction,
that special jurisdiction should be exercised in accordance with the law which
creates it.
237 It should be mentioned here that the
question as to what the powers of the High Court under articles 226 and 227 and
of this Court under article 136 of the Constitution may be, is one that will
have to be decided on a proper occasion.
It is necessary to refer at this stage to an argument
advanced before us on behalf of the appellant which was based on the language
of article 71 (1) of the Constitution.
That provision runs thus :"All doubts
and disputes arising out of or in connection with the election of a President
or Vice-President shall be inquired into and decided by the Supreme Court whose
decision shall be final." The argument was as follows. There is a marked
contrast between the language used in article 71 (1) and that of article 329
(b). The difference in the phraseology employed in the two provisions suggests
that they could not have been intended to have the same meaning and scope as
regards matters to be brought up before the tribunals they respectively deal
with. If the framers of the Constitution, who apparently knew how to express
themselves, intended to include within the ambit of article 329 (b) all
possible disputes connected with elections to legislatures, including disputes
as to nominations, they would have used similar words as are to be found in
article 71 (1). It is true that it is not necessary to use identical language
in every provision, but one can conceive of various alternative ways of
expression which would convey more clearly and properly what article 329 (b) is
said to convey.
It seems to me that once it is admitted that
the same idea can be expressed in different ways and the same phraseology need
not be employed in every provision, the argument loses much of its force. But,
however that may be, I think there is a good explanation as to why article 329
(b) was drafted as it stands.
A reference to the election rules made under
the Government of India Acts of 1919 and 1935 will show that the provisions in
them on the subject were almost in the same language as article 329 (b). The 21
238 corresponding rule made under the Government of India Act, 1919, was rule
31 of the electoral rules, and it runs as follows :"No election shall be
called in question, except by an election petition presented in accordance with
the provisions of this Part." It should be noted that this rule occurs in
Part VII, the heading of which is "The final decision of doubts and
disputes as to the validity of an election". These words throw some light
on the function which the election tribunal was to perform, and they are the
very words which the learned counsel for the appellant argued, ought to have
been used to make the meaning clear.
The same scheme was followed in the election
rules framed under the Government of India Act, 1935, which are contained in
"The Government of India (Provincial Elections) (Corrupt Practices and
Election Petitions) Order, 1936", dated the 3rd July, 1936. In that Order,
the rule corresponding to rule 31 under the earlier Act, runs thus :"No
election shall be called in question except by an election petition presented
in accordance with the provisions of this Part of the Order." This rule is
to be found in Part III of the Order, the heading of which is "Decision of
doubts and disputes as to validity of an election and disqualification for
corrupt practices." The rules to which I have referred were apparently
framed on the pattern of the corresponding provisions of the British Acts of
1868 and 1872, and they must have been intended to cover the same ground as the
provisions in England have been understood to cover in that country for so many
years. If the language used in article 329 (b) is considered against this
historical background, it should not be difficult to see why the framers of the
Constitution framed that provision in its present form and chose the language
which had been consistently used in certain earlier legislative provisions and
which had stood the test of time.
239 And now a word as to why negative
language was used in article 829 (b). It seems to me that there is an important
difference between article 71 (1) and article 329 (b).
Article 71 (1) had to be in an affirmative
form, because it confers special jurisdiction on the Supreme Court which that
Court could not have exercised but for this article. Article 329 (b), on the
other hand, was primarily intended to exclude or oust the jurisdiction of all
courts in regard to electoral matters and to lay down the only mode in which an
election could be challenged. The negative form was therefore more appropriate,
and, that being so, it is not surprising that it was decided to follow the
preexisting pattern in which also the negative language had been adopted.
Before concluding, I should refer to an
argument which was strenuously pressed by the learned counsel for the appellant
and which has been reproduced by one of the learned Judges of the High Court in
these words:-"It was next contended that if nomination is part election, a
dispute as to the validity of nomination is a dispute relating to election and
that can be called in question only in accordance with the provisions of
article 329 (b) by the presentation of an election petition to the appropriate
Tribunal and that the Returning Officer would have no jurisdiction to decide
that matter and it was further argued that section 36 of Act XLIII of 1981
would be ultra vires inasmuch as it confers on the Returning Officer a jurisdiction
which, article 329 (b) confers on a Tribunal to be appointed in accordance with
the article." This argument displays great dialectical ingenuity, but it
has no bearing on the result of this appeal and I think it can be very shortly
answered. Under section 36 of the Representation. of the People Act, 1951, it
is the duty of the Returning Officer to scrutinize the nomination papers to
ensure that they comply with the requirements of the Act and decide all
objections which be made to any nomination. It is clear that unless this duty
is discharged properly, any number of candidates may stand for election without
complying with the provisions of the Act and a great deal of 240 confusion may
ensue. In discharging the statutory duty imposed on him, the Returning Officer
does not call in question any election. Scrutiny of nomination papers is only a
stage, though an important stage, in the election process. It is one of the
essential duties to be performed before the election can be completed, and
anything done towards the completion of the election proceeding can by no
stretch of reasoning be described as questioning the election. The fallacy of
the argument lies in treating a single step taken in furtherance of an election
as equivalent to election. The decision of this appeal however turns not on the
construction of the single word "election", but on the construction
of the compendious expression--"no election shall be called in
question" in its context and setting, with due regard to the scheme of
Part XV of the Constitution and the Representation of the People Act, 1951.
Evidently, the argument has no bearing on this method of approach to the
question posed in this appeal, which appears to me to be the only correct
method.
We are informed that besides the Madras High
Court, seven other State High Courts have held that they have no jurisdiction
under article 226 of the Constitution to entertain petitions regarding improper
rejection of nomination papers. This view is in my opinion correct and must be
affirmed. The appeal must therefore fail and is dismissed.
In view of the nature and importance of the
points raised in this appeal, there should be no order to costs.
PATANJALI SASTRI C.J.--I agree.
MEHR CHAND MAHAJAN J.--I agree.
MUKHERJEA J.--I agree.
DAS J.-I agree.
CHANDRASEKHARA AIYAR J.-I agree.
Appeal dismissed.
Agent for the appellant: S. Subrahmanyam.
Agent for the 1st respondent: P.A. Mehta.
Agent for the Union of India and the State of
Madhya Bharat: P.A. Mehta.
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