Narayan Bhaskar Khare Vs. The Election
Commission of India [1957] INSC 43 (3 May 1957)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER DAS, S.K.
KAPUR, J.L.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
CITATION: 1957 AIR 694 1957 SCR 1081
ACT:
President, Election of-Doubts and Disputes
relating to such election-jurisdiction and Power of Supreme Court, when can be
exercised-'Election' Meaning of-Constitution of India, Arts. 71, 62-The
Presidential and Vice-Presidential Election Act, 1952 (XXXI Of 1952), s. 14.
HEADNOTE:
The petitioners entertained grave doubts as
to the propriety of holding the Presidential election before the general
elections had been completed throughout the entire territory of India and, by applications
filed under Art. 71(1) of the Constitution as citizens of India, invoked the
jurisdiction and power of the Supreme Court there under to inquire into such
doubts and sought for an order restraining the Election Commission from taking
the poll in connection with the election of the President, fixed for May 6,
1957, till the general elections in the Union territory of Himachal Pradesh and
in two Lok Sabha Constituencies of the State of Punjab, which were still to be
held, had been completed. The expiry of the term of office of the then
President which caused the Presidential election was to come about on the
mid-night of May 12, 1957. One of the petitioners alleged that he was a
candidate for the Presidential election and the time intervening between the
date when he received his nomination paper and the date fixed for the filing of
it was too short to enable him to file it within time and the case of the other
was that he was a prospective candidate for election to the Lok Sabha from one
of the Punjab Constituencies, where election was yet to be held, and would be
prevented from exercising his right to vote for the election of the President.
Held, that the present petitions were
premature and must be dismissed.
^ The jurisdiction and power conferred on the
Supreme Court by Art. 71(1) of the Constitution to inquire into and decide
doubts and disputes arising out of and in connection with the election of the
President can be exercised only after a particular candidate has been declared
elected and on an election petition filed under S. 14 of the Presidential and
Vice-Presidential Election Act of 1952. The word 'election' in Art. 71 of the
Constitution is used in the wider sense to denote the entire process of
election culminating 139 1082 in a candidate being declared elected and doubts
and disputes arising out of and in connection with such election must include
all doubts and disputes relating to any particular stage of it.
N. P. Ponnuswamy v. Returning Officer,
Namakkal Constituency, (1952) S.C.R. 218, referred to.
It is a well recognised principle of the law
of election that an election cannot be held up to facilitate the ventilation of
individual grievances in derogation of the interest of the people in general
and Art. 62 Of the Constitution, which requires that the election of President
must be completed within the time fixed by it and has been conceived in such
interest, is mandatory in character,
ORIGINAL JURISDICTION: Petitions Nos. 63 and
64 of 1957.
Petitions under Article 71(1) of the Constitution
of India for clarification of doubts in connection with the election of the
President. R. V. S. Mani and I. R. V. Sastri, for the petitioner in Petition
No. 63 of 1957.
R. Patnaik, for the petitioner in Petition
No. 64 of 1957.
M. C. Setalvad Attorney-General for India, G.
N. Joshi, Porus A. Mehta and R. H. Dhebar, for the respondents (Caveators) in
both the petitions.
1957. May 3. The Judgment of the Court was
delivered by DAS C. J.-The petitioners in the above petitions have moved this
Court to exercise the jurisdiction and power vested in it by and under Art.
71(1) of the Constitution of India and to inquire into and decide what has been
described as a "grave doubt" in connection with the election of the
President of India and to direct the Election Commission not to proceed with
the polling in connection with the said election which has been fixed for May
6, 1957, but to hold the same after duly completing all the elections to the
Lok Sabha and the Legislatures in all the States of the Indian Union including
the Union territory. The first main petition was presented on April 26, 1957,
and the second on April 29, 1957. Along with each of the said petitions has
been filed a Civil Miscellaneous Petition asking for a stay of the polling for
the Presidential election fixed 1083 for May 6, 1957. In the first main
petition the Returning Officer has not been made a party, but in the second
petition he has been impleaded as a respondent. The learned Attorney-General
has appeared on behalf of the Election Commission and has waived the service of
notice. We can, therefore, dispose of all the petitions before us.
There is no dispute as to the material facts
which may shortly be stated as follows:
After the general elections in all the States
and Union territories of India, except in the Union territory of Himachal
Pradesh, which is to return four members to the Lok Sabha and in two
constituencies in the State of Punjab, the old Lok Sabha was dissolved on April
4, 1957 and the New Lok Sabha was constituted on April 5, 1957, under s. 73 of
the Representation of the People Act (XLIII of 1951). As required by s. 4 of
the Presidential and Vice-Presidential Election Act, 1952 (XXXI of 1952), the
Election Commission issued a notification in the official Gazette appointing
April 16, 1957, as the last date for making nominations,April 17, 1957, as the
date for the scrutiny of the nominations, April 20, 1957, as the last date for
the withdrawal of candidatures, May 6, 1957, as the polling date and May 10,
1957, as the date for the counting of the votes and the declaration of the
result. The term of office of the present President is due to expire on the
mid-night of May 12, 1957. The reason for fixing the above time schedule
obviously was that the Presidential election should be completed before the
term of office of the present President expired.
After the notification constituting the new
Lok Sabha was published in the Press on April 7, 1957, the petitioner in the
first petition applied to the Election Commission for the supply of the
nomination papers, which he eventually received at Nagpur in the afternoon of
April 10, 1957. This left a period of five days for the filing of the
nomination paper before the Returning Officer at New Delhi. The petitioner
submits that the time was too short and he was prevented from filing his
nomination paper due to want of time. He 1084 has filed the petition as a
citizen of India and as an "intending candidate" for the Presidential
election.
The petitioner in the second petition is a
member of the Hindu Mahasabha and is contenting the election to the Lok Sabha
as an independent candidate from Kangra Parliamentary constituency in the State
of Punjab. He filed his nomination paper on January 28, 1957, as originally the
polling was scheduled to commence in that constituency on February 24, 1957.
The polling, however, has since been postponed and fixed for June 2, 1957. He
has filed the petition as a citizen of India and as a prospective member of Lok
Sabha and contends that if the Presidential election is held on May 6, 1957, he
will be deprived of his right to vote for the election of the President of the
Union. He has also complained of discrimination offending against Art. 14 of
the Constitution.
Under Art. 56 of the Constitution the
President holds office for a term of five years from the date on which he
enters upon his office. The present incumbent of the high office entered upon
his office on May 12, 1952, and, as already stated, his term is due to expire
on the mid-night of May 12, 1957. Article 62(1) peremptorily requires that the
election to fill the vacancy caused by the expiration of the term of office of
the President shall be completed before the expiration of the term. It is
necessary to bear in mind this clear mandatory provision of the Constitution.
For ascertaining how such election of President is to be held, we have to go
back to Art. 54, which runs thus:
" 54. The President shall be elected by
the members of an electoral college consisting of(a) the elected members of
both Houses of Parliament ; and (b) the elected members of the Legislative
Assemblies of the States." On one side it is said that the Electoral
College is to consist of those members falling under clauses (a) and (b), who
are elected at the crucial date, that is to say, the date when the election is
to take place. Suppose, it is said, that the term of the President's office
expires during the currency of the life of Parliament; as it 1085 may well do
in cases contemplated by Art. 62(2) and suppose there are vacancies in
Parliament or in the Legislature of one or more States, surely the election of
the President required by Art. 62(1) to be held before the expiry of the term
of the outgoing President cannot be held up until the vacancies are filled up.'
On the other hand it is contended that the Electoral College must be
constituted after the elections in all States and Union territories are
completed and should consist of all the elected members falling within both the
categories. Inasmuch as elections have not taken place at all in Himachal
Pradesh and in two constituencies of the State of Punjab, the Electoral College
cannot be constituted until after those members are also elected. It is pointed
out that though on the present occasion only four members of Himachal Pradesh
and only two members in the State of Punjab have not been elected,
nevertheless, if the objection of the petitioners is not now heeded any party
in power may in future arrange for the election of its own nominee as President
by postponing the elections in several States, where it may not expect to get a
majority of seats.
It is said that on March 28, 1957 some
members of the then Lok Sabha had raised a question as to the danger and
impropriety of holding the election of the President before the completion of
the elections throughout the territory of India. Both the petitioners share the
same view and contend that a " grave doubt " has arisen in connection
with the election of the President and that such a doubt must, under Art. 71,
be inquired into and decided by this Court. The extreme contention put forward
on behalf of the petitioners is that it does not matter whether the doubt is
well founded or not or whether it is good, bad or indifferent; this Court is
bound to inquire into and decide the same as soon as a doubt arises and a
citizen brings it before this Court for resolution thereof. For the purpose of
this case it is not necessary for us to express any opinion on the merits of
the respective contentions for these petitions may well be disposed of on a
narrower preliminary ground. 1086 Article 71 (1) Undoubtedly confers
jurisdiction and power on this Court to inquire into and decide " all
doubts and disputes arising out of or in connection with the election of
President or Vice-President " and this Court will have to inquire into and
decide the same. But the question is whether there is anything in the
Constitution indicating the time at which and the manner in which such doubts
and disputes have to be inquired into and decided. Under Art.
324 the superintendence, direction and
control of the preparation of the electoral rolls for, and the conduct of, all
election,% to Parliament and to the Legislature of every State and of elections
to the office of President and Vice President held under this Constitution,
including the appointment of election tribunals for the decision of doubts and
disputes arising out of or in connection with elections to Parliament and the
Legislatures of States shall be vested in the Election Commission. It will be
noticed that identical words are used, namely, " doubts and disputes
arising out of or in connection with elections " which are also to be
found in Art. 71 (1). By Art. 327, Parliament was authorised to make provision
with respect to all matters " relating to or in connection with elections
" to Parliament or to the Legislatures of the States. Art. 329 provides,
amongst other things, that notwithstanding anything in this Constitution no
election to either House of Parliament or either House of 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 proper legislature. In exercise of powers thus conferred on it,
Parliament enacted the Representation of the People Act, 1951, providing how
elections are to be held and how and on what grounds such elections may be
called in question. It also set up a special forum called Election Tribunal for
the decision of " doubts and disputes arising out of or in connection with
such elections." In N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency (1) the Returning Officer for that constituency had rejected, the
(1) (1952) S.C.R. 218. 1087 nomination paper of the appellant. Thereupon the
appellant applied to the High Court of Madras under Art. 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. The High
Court of Madras dismissed the petition and the appellant brought an appeal to
this Court. The Full Court held that in view of the provisions of Art. 329 (b)
of the Constitution and s. 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 main controversy in the appeal centered round the words "no
election shall be called in question except by an election petition "
occurring in Art. 329 (b). The most important question for determination by
this Court was the meaning to be given to the word " election " in
Art. 329 (b). This Court said at page 226:
"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
elected." After referring to the cases of Srinivasalu v. Kuppuswami (1)
and Sat Narain v. Hanuman Prasad (2 ) and a passage in Halsbury's Laws of
England, 2nd edition, Volume 12, page 237, this Court took the view that the
word "election " could be and had been properly used with respect to
the entire process which consisted of several stages and embraced many steps
some of which might have an important bearing on the result of the process and,
therefore, held that in view of the provisions of Art. 329 (b) of the
Constitution and s. 80 of the Representation of the People Act, 1951, the High
Court had no jurisdiction to interfere with the (1) A.I.R. (1928) Mad. 253,
255.
(2) A.I.R. (1945) Lah. 85.
1088 order of the Returning Officer under
Art. 226. The only way such an order could be called in question was as laid
down in Art. 329 (b) of the Constitution and s. 80 of the Representation of the
People Act, 1951, and this could be done only by an election petition presented
before the Election Tribunal after the entire process of election culminating
in a candidate being declared elected had been gone through. On such election
petition being filed the Election Tribunal would be properly bound to inquire
into and decide "all doubts and disputes arising out of or in connection
with the election " irrespective of the stage in the entire election process
to which the " doubts and disputes relate". We now approach the
construction of Art. 71 in the light of the decision of this Court.
As already indicated Art. 71(1) confers
jurisdiction and power on this Court to inquire into and decide id all doubts
and disputes arising out of or in connection with the election of a President
or Vice-President". The question is: Is there in this Article or in any
other part of the Constitution or anywhere else any indication as to the time
when such inquiry is to be held ? In the first place, Art. 71 postulates an
" election of the President or Vice President " and provides for
inquiry into doubts and disputes arising out of or in connection with such an
election. What is the meaning to be given to the word " election " as
used in this Article? If we give to the word, election" occurring in Art.
71(1) the same wide meaning as comprising the entire election process
culminating in a candidate being declared elected, then clearly the inquiry is
to be made after such completed election, i.e., after a candidate is declared
to be elected as President or Vice President as the case may be. We see no
reason why this accepted meaning should not be given to the critical word.
In the second place, under cl. 3 of Art. 71,
subject to the provisions of this Constitution, Parliament may by law regulate
any matter "relating to or connected with the election " of a
President or Vice-President. The words here also are similar to those used in
Art. 327 and are equally wide enough to cover matters relating to or 1089
connected with any stage of the entire election process. In exercise of powers
conferred on it by Art. 71(3), Parliament has enacted the Presidential and
Vice-Presidential Election Act, 1952 (XXXI of 1952) to regulate certain matters
relating to or connected with elections to the office of President and
Vice-President of India. A glance through the provisions of this Act will
indicate that in the view of Parliament the time for the exercise of
jurisdiction by this Court to inquire into and decide doubts and disputes
arising out of or in connection with the Presidential election is after the
entire election process is completed. Under s. 14 of this Act, which
corresponds to s. 80 of the Representation of the People Act, 1951, no election,
meaning the election of the President or Vice-President, shall be called in
question except by an election petition presented to this Court in accordance
with the provisions of Part III of that Act and of the rules made by this Court
under Art.
145. Section 18, which lays down the grounds
for declaring the election of a returned candidate to be void, runs as follows:
18. Grounds for declaring the election of a
returned candidate to be void:-If the Supreme Court is of opinion(a) that the
offence of bribery or undue influence at the election has been committed by the
returned candidate or by any person with the connivance of the returned
candidate; or (b) that the result of the election has been materially affected(i)
by reason that the offence of bribery or undue influence at the election has
been committed by any person who is neither the returned candidate nor a person
acting with his connivance; or (ii)by the improper reception or refusal of a
vote, or (iii)by the non-compliance with the provisions of the Constitution or
of this Act or of any rules or, orders made under this Act; or (c) that the
nomination of any candidate has been wrongly rejected or the nomination of the
successful candidate or of any other candidate who has 140 1090 not withdrawn his
candidature has been wrongly accepted;
the Supreme Court shall declare the election
of the returned candidate to be void.
(2) For the purposes of this section, the
offences of bribery and undue influence at an election have the same meaning as
in Chapter IX-A of the Indian Penal Code (Act XLV of 1860).
It is quite clear from the language of the
section that any improper reception or refusal of a vote, or any noncompliance
with the provisions of the Constitution or of the Act or of any rules or orders
made under the Act or the improper acceptance or rejection of a nomination
paper may be made a ground for challenging the election. This means that all
doubts and disputes relating to any stage of the entire election process is to
be canvassed by an election petition presented to this Court after the election
in its wide sense is concluded.
The above stated interpretation appears to us
to be in consonance with the other provisions of the Constitution and with good
sense. If doubt or dispute arising out of or in connection with the election of
a President or Vice President can be brought before this Court before the whole
election process is concluded then conceivably the entire election may be held
up till after the expiry of the five years' term which will involve a
no-compliance with the mandatory provisions of Art. 62. The well recognised
principle of election law, Indian and English, is that elections should not be
held up and that the person aggrieved should not be permitted to ventilate his
individual interest in derogation of the general interest of the people, which
requires that elections should be gone through according to the time schedule.
It is, therefore, in consonance both with the provisions of Art. 62 and with
good sense to hold that the word "election" used in Art. 71 means the
entire process of election. That is what Parliament understood to be the
meaning of Art.,, 71 as is apparent from the Presidential and Vice-Presidential
Election Act, 1952. Again this Court has framed rules under Art. 145 to
regulate the 1091 procedure and a perusal of those rules will also indicate
that " all doubts and disputes arising out of or in connection with the
election of a President or Vice President " should be brought before the
court after the result of the entire election is declared, that is to say,
after a candidate is declared to be elected to the office of President or
Vice-President.
It is pointed out that if the petitioners are
compelled to wait until after the entire election process is concluded and then
to file election petitions, they will have to show that the result of the
election has been materially affected as required by s. 18 of the Presidential
and Vice Presidential Election Act, 1952. It is contended that there is no
reason why this extra, burden or hardship, which is not in terms imposed by
Art. 71, should be placed upon the petitioners. It is not necessary for the
purposes of disposing of these petitions to express any opinion as to the
validity or otherwise of this requirement of s. 18 and we do not do so. But the
plea of alleged hardship brought about by s. 18 cannot alter the true meaning
and import of Art. 71. In our judgment Art. 71 postulates an election and the
word "election " occurring in Art. 71 means the entire election process
culminating in a candidate being declared elected and doubts and disputes
arising out of or in connection with any of the stages of such completed
election have to be inquired into and decided by this Court which, in point of
time, must necessarily be after the completion of the entire process
compendiously called the election.
Learned counsel appearing for the petitioner
in the second petition raised an additional point that the Election Commission
by fixing the election on May 6, 1957, has arbitrarily deprived the members
representing territorial constituencies like Kangra and Himachal Pradesh of
their right to exercise and enjoy other privileges of membership of Parliament.
This argument was raised half heartedly at the fag end of his argument in reply
and was not seriously pressed. In any event he did not advance any cogent
argument showing how the petitioner had been deprived of the equal protection
of the law. Elections have to be held in numerous 1092 constituencies and
different dates have to be fixed for holding the actual elections in different
constituencies according to the various exigencies relating to the particular
localities in which the constituencies are situate. No good ground has been
established for holding that there has been any discrimination such as is
prohibited by Art. 14 of the Constitution. In so far as the alleged
discrimination, if any, in breach of the equal protection clause of the
Constitution may be said to be calculated to raise any doubt in connection with
the election of the President it will, at best, be a noncompliance with the
provisions of the Constitution which may or may not, after the conclusion of
the entire election, be made a ground, under s. 18 of the Presidential and
Vice-Presidential Election Act, 1952, for calling the election in question as
to which we need formulate no final opinion at this stage.
We express no opinion on the merits of any of
the controversies between the parties, but, for the foregoing reasons, we hold
that the present petitions are premature and cannot be entertained at this
stage. We, therefore, dismiss the petitions Nos. 63 and 64 of 1957. Civil
Miscellaneous Petitions Nos. 563 and 564 of 1957 will also stand dismissed.
Petitions dismissed.
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