Raj Krushna Bose Vs. Binod Kanungo
& Ors  INSC 8 (4 February 1954)
DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ)
BOSE, VIVIAN HASAN, GHULAM
CITATION: 1954 AIR 202 1954 SCR 913
CITATOR INFO :
F 1954 SC 587 (12) F 1955 SC 425 (12) R 1976
Constitution of India, arts. 136 and
226-Representation of the People Act, 1951 (Act XLIII of 1951), ss. 33(2), 99,
105, 123 (8)-Order of the tribunal under s. 105 declared as final and
conclusive-Whether affects discretionary powers of Supreme Court and High
Courts under arts. 136 and 226- Elected candidate nominated or seconded by
Government servant-Legal effect thereof Orders of tribunal, contents of.
(1) The unfettered discretionary powers
conferred on the Supreme Court and the High Courts by arts. 136 and 226 of the
Constitution respectively cannot be taken away or whittled down by the
legislature and therefore s. 105 of the Representation of the People Act, 1951,
which provides that every order of the tribunal under the Act shall be final
and conclusive did not affect such powers.
(2) In view of the provisions of s. 16 of the
Representation of the People Act, 1950, and the provisions of ss. 33 (2) and
123 (8) of the Representation of the People Act, 1951, an election to a State
Legislative Assembly is not invalidated when the elected member is either
nominated or seconded or both by a Government servant or servants.
(3) The Supreme Court recorded its
disapproval of the way in which the Election Tribunal shirked its duty and
tried to take a short cut in deciding only two of the twelve issues framed and
thus acted against the provisions of s. 99 of the Act.
CIVIL APPELLANTE JURISDICTION: Civil Appeal
No. 239 of 1953.
Appeal by special leave from the Order and
Judgment dated the 5th September, 1953, of the Election Tribunal, Cuttack, in
Election Case No. 5 of 1952.
S. B. Jathar for the appellant.
S. P. Sinha (R. Patnaik, with him) for the
1954. February 4. The Judgment of Mahajan
C.J. Mukherjea, Das and Ghulam Hasan JJ. was delivered' by Das J. Vivian Bose
J. delivered a separate judgment.
DAS J.-The question here is whether an
election to a State Legislative Assembly is invalidated when the 118 914
member's nomination was either proposed or seconded, or both, by a Government
servant or servants.
The appellant was a minister in the State of
Orissa. He was nominated as a candidate for the Orissa Legislative Assembly and
was later declared to have been elected. One of his rivals was the 1st
respondent who filed an election petition challenging the election on a number
of grounds, among them, the following.
The appellant had filed about two dozen
In five of them the proposer was a Government
servant and in four the seconder. The 1st respondent stated that this was the
first step in a scheme to get the assistance of Government officers in
furtherance of the appellant's election and to "use and utilse" them
"for the purposes of the election." There were also other allegations
Which we need not consider here.
The appellant made counter allegations
against the 1st respondent, whom he had defeated, but they do not concern us
The Election Tribunal framed twelve issues
and examined 101 witnesses, but when it came to make its order it proceeded to
decide only two issues instead of deciding the whole case. It held that as the
proposers and seconders referred to above were admittedly Government servants
that constituted a major corrupt practice and so invalidated the election under
section 123 (8) of the Representation of the People Act, 1951 (No. XLIII of
1951). The other of the two decided issues does not concern this appeal.
The appellant thereupon petitioned the High
Court for a writ of certiorari Under article 226 of the Constitution. The High
Court refused to interfere. The learned Judges held that there was no want of
jurisdiction in the tribunal and that the tribunal's view of the law was a
possible and reasonable one , accordingly, as the High Court was not a court of
appeal from the tribunal, they were not called upon to decide the question as a
court of appeal.
The appellant was granted special leave to
appeal by this court against the order Of the Election Tribunal.
915 A question of 'great public importance
affecting Government servants is involved and we deem it right to examine the
question under our special jurisdiction under article 136.
The only sections we are called upon to
consider are sections 33 (2) and 123 (8). The former provides that- "Any
person whose name is registered in the electoral roll of the constituency and
who is not subject to any disqualification mentioned in section 16 of the
Representation of the People Act, 1950 (XLIII of 1950) may subscribe as
proposer or seconder as man nomination papers.
as there are vacancies to be filled...
According to the latter- "The obtaining
or procuring or abetting...... by a candidate or his agent or, by any other
person with the 'connivance of a candidate or his agent, any assistance for the
furtherance of the prospects of the candidate's election from any person
serving under the Government of India or the Government of any State other than
the giving of vote by such person" shall be deemed to be a major corrupt
practice for the purposes of the Act. A corrupt practice of this kind entails
disqualification for membership (section 140).
Section 33 (2) is general and confers the
privilege of proposing or seconding a candidate for election on every person
who is registered in the electoral roll provided be is not disqualified under
section 16 of the Act of 1950.
That section excludes three classes of
persons but not Government servants, unless of course they happen to fall
within those classes. Therefore, so far as section 33 (2) is concerned, a Government
servant is entitled to nominate or second a candidate for election unless he
happens to fall in one of the three excluded categories. The question is
whether section 123 (8) takes away from Government servants that which section
33 (2) gives to them. We do not think it does.
Viewing the question as a plain matter of construction,
we find that when section 33(2) was framed those 916 who passed it had in mind
the desirability of excluding certain classes of persons from its scope and
they chose to limit those classes to three. Therefore, in the absence of
express provision to the contrary elsewhere, or unless it follows by necessary
implication, the section must be construed to mean that those not. expressly
excluded are intended to be included. As Government servants are not in the
excluded categories it follows that so far as this section is concerned they
are not disqualified from proposing and seconding a candidate's nomination.
Now, does section 123 (8) contain express
provision to the contrary or can such provision be inferred by necessary
implication? It is usual, when one section of an Act takes away what another
confers, to use a non obstante clause and say that "notwithstanding
anything contained in section so and so, this or that will happen",
otherwise, if both sections are clear, there is a head-on clash. It is the duty
of courts to avoid that and, whenever it is possible to do so, to construe
provisions which appear to conflict so that they harmonise.
What exactly does section 123 (8) forbid? It
is the obtaining or procuring etc., of "any assistance.........
other than the giving of vote by such
person." Therefore, it is permissible for a candidate to canvass
Government servants for their votes and if a Government servant chooses to reveal
his hand it would be permissible for the candidate to disclose the fact and use
it in furtherance of his election, for the law imposes no secrecy on the
intentions of those who, of their own free will, choose to say how they intend
to vote. They cannot be compelled to disclose the fact and any improper attempt
to obtain such information would be a corrupt practice, but equally, they are
not completed to keep the fact secret if they do not wish to do so; nor is the
candidate. If therefore the law permits this, we find it difficult to see how
in the same breath it can be said to have taken away the right expressly
conferred by section 33(2). The policy of the law is to keep Government
servants aloof from politics and also to protect them from being imposed on, by
those with 917 influence or in positions of authority and power, and to prevent
the machinery of Government from being used in furtherance of a candidate's
return. But at the same time it is not the policy of the law to disenfranchise
them or to denude them altogether of their rights as ordinary citizens of the
land. The balance between the two has, in our opinion, been struck in the
manner indicated above.
But though it is permissible for a candidate
to go that far, he cannot go further and if the procurement of Government
servants to propose and second a nomination is part of a plan to procure their
assistance for the furtherance of the candidate's prospects in other ways than
by vote, then section 123(8) is attracted, for in that case, the plan, and its
fulfillment, must be viewed as a connected whole and the acts of proposing or
seconding which are innocent in themselves cannot be separated from the rest.
Our conclusion on the preliminary issue may
also be supported on another ground. The major corrupt practice referred to in
clause (8) of section 123 consists in obtaining or procuring or abetting or
attempt to obtain or procure by a candidate or his agent etc., any assistance
for the furtherance of the prospects of the candidate's election from any
person serving under the Government of India or the Government of any State
other than the giving of vote by such person. In order, therefore, to bring a
case within the mischief of that clause the assistance must be for the
furtherance of the prospects of the candidate's election.
Section 79(b) defines a candidate as meaning
" a person who has been or claims to have been nominated as a candidate at
any election, and any such person shall be deemed to have been a candidate as
from the time when, with the election in prospect, he began to hold himself out
as a prospective candidate." Unless, therefore, a case falls within the
latter half of the definition a person becomes a candidate under the first part
of the definition only when he has been duly nominated as a candidate and the
furtherance of 918 the prospects of a candidate's election must, therefore, in
such a case commence from after that stage. Although evidence was adduced on
both sides, there has been no finding so far on questions of fact which may or
may not bring the case within the second part of the definition. In the absence
of such a finding the case must be regarded, for the purpose of the preliminary
issue, as governed by the first part of the definition and as such the
proposing and seconding by a Government servant cannot be regarded as
"assistance for the furtherance of the prospects of the candidate's
election." In this view of the matter also, the judgment of the Election
Tribunal cannot be sustained.
We set aside the order of the tribunal and
remit the case to the Election Commission with directions to it to reconstitute
the tribunal which tried this case and to direct the tribunal to give its
findings on all the issues raised and to make a fresh order.
Our power to make such an order was not
questioned but it was said that when the legislature states that the orders of
a tribunal under an Act like the one here shall be conclusive and final
(section 105), then we should not interfere. It is sufficient to say that the
powers conferred on us by article 136 of the Constitution and on the High Courtís
under article 226 cannot be taken away or whittled down by the legislature. So
long as these powers remain, our discretion and that of the High Courts is
We wish to record our disapproval of the way
in which this tribunal shirked its work and tried to take a short cut. It is
essential that these tribunals should do their work in full. They are ad hoc
bodies to which remands cannot easily be made as in ordinary courts of law. Their
duty under section 99 is, " where any charge is made in the petition of
any corrupt or illegal practice having been committed at the election" to
record " a finding whether any corrupt or illegal practice has or has not
been proved to have been committed...and the nature of that corrupt or illegal
practice." 919 Also, " to give the names of all persons, if any, who
have been proved at the trial to have been guilty of any corrupt or illegal
practice and the nature of that practice." Their duty does not end by
declaring an election to be void or not because section 99 provides that in
addition to that " at the time of making an order under section 98the
tribunal shall also make an order etc........" A number of allegations
were made in the petition about corruption and illegal practices, undue
influence and bribery. It was the duty of the tribunal not only to enquire into
those allegations, as it did, but also to complete the enquiry by recording
findings about those allegations and either condemn or clear the candidate of
the charges made.
We make no order about costs.
Bose J.-I agree on all but one point. I have
some doubt about the reason given by my learned brother which is based on the
definition' of "candidate" in the Act. I prefer not to express any opinion
that one point.
Agent for the appellant: Ratnaparkhi Anant
Agent for respondent No. 1 A. D. Mathur.