Jumuna Prasad Mukhariya & Ors Vs.
Lachhi Ram & Ors  INSC 81 (28 September 1954)
BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ)
DAS, SUDHI RANJAN HASAN, GHULAM
CITATION: 1954 AIR 686 1955 SCR 608
CITATOR INFO :
D 1955 SC 756 (6) D 1965 SC 183 (26) RF 1975
SC 349 (29) RF 1975 SC2299 (140) R 1980 SC 354 (5) RF 1990 SC1023 (12) C 1991
Constitution of India, Art. 19(1)
(a)-Representation of the People Act (XLIII of 1951). ss. 123(5) and 124(5)-
Whether ultra vires the Constitution.
Held, that sections 123(5) and 124(5) of the
Representation of the People Act (XLIII of 1951) are not ultra vires article
19(1) (a) of the Constitution.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 156 of 1954.
Appeals by Special Leave against the Judgment
and Order dated the 24th December, 1953, of the Election Tribunal, Gwalior,
Madhya Bharat, in Election Petition No. 263 of 1952.
N.C. Chatterjee, (S. K. Kapur and Ganpat Rai,
with him) for the appellants.
C.K. Daphtary, Solicitor-General for India
(S. P. Varma, with him) for the respondents Nos. I and 5.
C.K. Daphtary, Solicitor-General for India
(C. P. Lal, with him) for respondent No. 4.
1954. September 28. The Judgment of, the
Court was delivered by BOSE J.-This is an appeal from a decision of the
Election Tribunal of Gwalior in which the petitioner, an elector, sought to set
aside the elections of the appellants (respondents 1 and 2 to the petition) who
were the successful candidates. The constituency is Bhilsa, a double member
constituency in Madhya Bharat. The petitioner seems to have been fighting on
behalf of the 6th and 7th respondents to the petition because one of his
prayers is that they be declared to have been duly elected in place 'of the appellants
(respondents 1 and 2). The petitioner succeeded and the Tribunal declared the
elections of the two appellants to be void and further declared that the 6th
and 7th respondents had boon duly elected, 609 We will first consider that part
of the decision which declares the election of the two appellants to be void.
The Tribunal finds, among other things, that
the' appellant No. 1 (1st respondent) published certain pamphlets which contain
statements listed as (a), (b), (c), (e), (f) and (g) by the Tribunal. The
Tribunal holds that these statements are false and that the 1st appellant (1st
respondent) did not believe them to be true. It also holds that these
statements reflect on the personal character and conduct of the 6th respondent
and are reasonably calculated to prejudice his prospects in the election. These
findings were contested and the learned counsel for the appellants contended
that the attack was on the public and political character of the 6th respondent
and was a legitimate attack.
We do not intend to examine this as a Court
of appeal because this is a special appeal and all we are concerned to see is
whether a Tribunal of reasonable and unbiased men could judicially reach such a
conclusion. We have had some of these pamphlets read out to us and we are of
opinion that the conclusion of the Tribunal is one which judicial minds could
reasonably reach. We decline to examine the matter further in special appeal.
Under the law the decision of the Tribunal is meant to be final. That does not
take away our jurisdiction but we will only interfere when there is some
glaring error which has resulted in a substantial miscarriage of justice. On
those findings a major corrupt practice on the part of the 1st respondent (1st
appellant here) under section 123(5) of the Representation of the People Act,
1951, is established.
The next finding concerns the 2nd respondent
(appellant No. 2). The Tribunal finds that he made a systematic appeal to
Chamhar voters to vote for him on the basis of his caste.
There is evidence to support this finding.
The leaflets marked N and 0 place that beyond doubt. This constitutes a minor
corrupt practice under section 124(5) of the Act.
Both these provisions, namely sections 123(5)
and 124(5), were challenged as ultra vires article 19(1)(a) of the
Constitution, It was contended that article 245(1) 78 610 prohibits the making
of laws which violate the Constitution and that the impugned sections interfere
with a citizen's fundamental right to freedom of speech. There is nothing in this
contention. These laws do not stop a man from speaking. They merely prescribe
conditions which must be observed if he wants to enter Parliament. The right to
stand as a candidate and contest an election is not a common law right. It is a
special right created by statute and can only be exercised on the conditions
laid down by the statute. The Fundamental Rights Chapter has no bearing on a
right like this created by statute. The appellants have no fundamental right to
be elected members of Parliament. If.
they want that they must observe the rules.
If they prefer to exercise their right of free speech outside these rules, the
impugned sections do not stop them. We hold that these sections are intra
In addition to these findings, the Tribunal
found that both the appellants committed an illegal practice within the meaning
of section 125(3) in that they issued a leaflet and a poster which did not have
the name of the printer on them.
This is a pure question of fact.
The result of committing any corrupt practice
is that the election of the candidate is void under section 100(2)(b). It is
not necessary to prove that the result of the election was materially affected
thereby because clause (b) is an alternative that stands by itself. All that
need be proved is that a corrupt practice has been committed, and that the
Tribunal finds to be the fact. The Tribunal was accordingly justified in
declaring the election of the first appellant to be void.
In addition to this the Tribunal found that
the corrupt practice committed by the second appellant respondent No. 2) also
materially affected the result of the election. This was challenged but we need
not go into that because the finding that the second appellant committed a
minor corrupt practice and also an illegal practice is clear and so his case
falls under clause (a) of sub-section (2) of section 100.
Sub-section (2)(a), so far as it is material
here, runs........................ if the Tribunal is of opinion- 611 (a)that
the election of a returned candidate has been procured or induced or the result
of the election has been materially affected, by any corrupt or -illegal
practice the Tribunal shall declare the election of the returned candidate to
be void." The Tribunal finds as a fact that the second appellant's
election was procured by a corrupt practice. His case therefore falls within
the first of the three alternatives envisaged by clause (a), so it is not
necessary to enquire whether it also falls under the third. We hold that this
election was also rightly declared to be void. That disposes of the first and
second appellants (respondents 1 and 2).
We now turn to respondents 6 and 7 to the
They are the 4th and 5th respondents before
us, Ramsahai and Sunnu La]. The Tribunal, acting under section 101 (b),
declared them to be duly elected. Here, we are of opinion that the Tribunal was
wrong. Before this can be done, it must be proved that " but for the votes
obtained by the returned candidate by corrupt or illegal practices...... such
other candidate would have obtained a majority of the valid votes. " The
Constituency was a double member constituency. The following stood for the
General Constituency and obtained the votes shown against them:
Jamuna Prasad Mukhariya (Respt. No. 1) 13,669
Keshav Shastri (Respt. No. 3) 1,999 V. N. Sheode (Respt. No. 4) 1,350 Ram Sabai
(Respt. No. 6) 12,750 The Tribunal says that the difference invotes between
respondents I and 6 is 919. We presume that this is meant to show that the
voting between them was close. From that the Tribunal jumps to the following
" Considering the scandalous nature of
the false statement regarding respondent No. 6 and the mode 612 of systematic
appeal on the basis of caste made by respondent No. 2 we have no doubt in our
respondent No. 1 got more votes simply
because of corrupt practices and if these. corrupt practices had not been there
respondent No. 6 undoubtedly would have obtained a majority of valid
votes." This, in our opinion, is pure speculation and is not a conclusion
which any reasonable mind could judicially reach on the data set out above.
There is nothing to show why the majority of the 1st respondent's voters would
have preferred the 6th respondent and ignored the 3rd and 4th respondents.
An exactly similar process of reasoning was
followed in the case of the 7th respondent. He was a Scheduled Caste candidate
and the voting there was as follows:
Chaturbhuj Jatav (Respt. No. 2) 12,452 Hira
Khusla Chamar (Respt. 5) 601 Sunnulal (Respt. 7) 10,889 Here, again, there is
no basis for concluding that those who voted for the 2nd respondent would, if
they had not done so, have preferred the 7th respondent to the 5th.
We set aside this part of the order.
The result is that the appeal fails in so far
as it attacks the Tribunal's declaration voiding the election of the two
appellants but succeeds against that part of the order which declares the 6th
and 7th respondents to have been elected. In the circumstances there will be no
order about costs in either Court.