Virji Ram Sutaria Vs. Nathalal Premji
Bhanvadia & Ors [1968] INSC 269 (4 November 1968)
04/11/1968 MITTER, G.K.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1970 AIR 765 1969 SCR (2) 507 1969
SCC (1) 77
CITATOR INFO :
F 1990 SC 528 (4)
ACT:
Constitution of India Art. 173---Oath to be
taken by candidate for election to the Legislature--Form of oath prescribed in
Third Schedule-- Oath taken in Gujarati language--Use of expression 'Rajya
Sabha' for 'Legislative Assembly'--Oath whether taken in proper form--Effect on
election--Directory or mandatory.
HEADNOTE:
The returned candidate 'at an election to the
Gujarat Legislative Assembly held in February 1967 had taken his oath as
prescribed by Art. 173 of the Constitution in the Gujarati version of the
relevant form set out in the Third Schedule to the Constitution. In the said
version the term "Legislative Assembly" was translated as "Rajya
Sabha". In an election petition it was urged that the term "Raiya
Sabha" was equivalent not to "Legislative Assembly" but to
"Legislative Council", 'and there fore the oath was not taken by the
returned candidate in the proper form and his election was liable to be set
aside. The High Court having decided against the election petitioner appeal
against its judgment was filed in this Court.
HELD: (i) The word 'sabha' means a gathering
or a meeting or an assembly of persons for a definite purpose.
Giving the word 'sabha' the said meaning in
the word 'Raiya Sabha' it would not be possible to hold that the oath was not
in compliance with the form prescribed in Art. 173(a) of the Constitution. No
doubt by common parlance in many of the States in Northern India the expression
'Rajya Sabha' has come to mean the Legislative Council of a State while the
State Legislative Assembly is known as Rajya Vidhan Sabha. But in the absence
of any authoritative translation of the expression "State Legislative
Assembly" in Gujarati the popular meaning of the expression could not give
proper guidance. The State of Gujarat has no Legislative Council of the State.
The Legislature consists of one house only, namely, the State Legislative.
Assembly. There could therefore be no misapprehension either in the person
taking the oath or in the Returning Officer when he was accepting the
nomination paper with the oath in Gujarati form that the candidate who
afterwards won the election was being nominated as a candidate to fill a seat
in the Legislative Council of the State and not in the Legislative Assembly.
[630 D--G] As the essential requirements of
the oath given in the form in the Third Schedule were not deviated from in the
Gujarati form used in this case it could not be held that the oath subscribed
in this case was not in compliance with Art. 173 merely because of the popular
meaning of the word "Rajya Sabha".
(ii) Non,-compliance with the provisions of a
statute or Constitution will not necessarily render a proceeding invalid if by
considering its nature, its design and the consequences which follow from its
non-observance one is not led to the conclusion that the legislature or the
Constitution-makers intended that there should be no departure from the strict
words used, [633 G--H] 628 In the present case the essential requirement of
Art.
173 read with Form VII-A was that the person
taking the oath or making the affirmation would bear true faith and allegiance
to the Constitution and would uphold the sovereignty and integrity of India.
The words which precede this portion are merely descriptive of the person and
of his nomination as a candidate. It is reasonable to think that a mere
misprint in the form of the oath or a mere inaccuracy in rendering the
expression "Legislative Assembly" in Gujarati would not be fatal to
the election of the candidate, if otherwise valid. [634 A] Kamaraja Nadar v. Kunju
Thevar, [1959] S.C.R. 583, Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore, [1964] 3 S.C.R. 573; Ch. Subbarao v. Member, Election Tribunal,
Hyderabad, [1964] 6 S.C.R. 213; State of U.P. v. Manbodhan Lal Srivastava,
[1958] S.C.R. 533 and State if Punjab v. Sat Pal Dang and State of Punjab v.
Dr. Bolder Prakash & Ors., [1969] 1 S.C.R. 478, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1180 of 1968.
Appeal under s. 116A of the Representation of
the People Act, 1951 from the judgment and order dated January 17, 18, 1968 of
the Gujarat High Court in Election Petition No. 2 of 1967.
Shyamala Pappu and Vineet Kumar, for the
appellant.
Bishan Narain and D.N. Misra, for the
respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J. The only question raised in this appeal from a judgment and order of
the High Court of Gujarat dismissing an election petition is, whether the
returned candidate was not qualified to be chosen to fill a seat of the State
Legislative Assembly inasmuch as he did not subscribe to an oath or affirmation
according to the form set out for the purpose in the Third Schedule to the
Constitution as prescribed under Art. 173 thereof.
'The relevant facts may be stated as follows:
The notification of the Governor of Gujarat under
s. 15(2) of the Representation of the People Act of 1951 for the purpose of
elections to the Gujarat State Legislative Assembly was issued on January 13,
1967. Nomination papers were filed by several persons including the returned
candidate and the scrutiny thereof was made on January 21, 1967. The poll took
place on February 18, 1967 and the result declared on February 27. 1967 showing
the returned candidate winning comfortably by a margin exceeding 3800 votes
over his nearest rival. One of the grounds taken in the election petition was
that immediately after the scrutiny of the nomination papers, the third
respondent to the election petition had filed a written objection before the
Returning Officer contending that the returned candidate had not taken oath 629
properly and on the same ground he along with respondents 2 and 4 were not
qualified to be chosen and their nomination papers should be rejected. This
contention was returned down by the Returning Officer and was also negatived by
the learned Judge who heard the election petition and in this appeal the
unsuccessful petitioner has only pressed this ground.
The relevant portion of Art. 173 of the
Constitution reads as follows :-- "A person shall not be qualified to be
chosen to fill a seat in the Legislature of a State unless he-- (a) is a
citizen of India, and makes and subscribes before some person authorised in
that behalf by the Election Commission an oath or affirmation according to the
form set out for the purpose in the Third Schedule;
(b) and(c) ." The Third Schedule
contains various forms of oath or affirmation. From VII-A the relevant form for
the present purpose is, as follows:
"Form of oath or affirmation to be made
by a candidate for election to the Legislature of a State :-- "1, A.B.,
having been nominated as a candidate to fill a seat in the Legislative Assembly
(or Legislative Council), do swear in the name of-God that I will solemnly
affirm bear true faith and allegiance to the Constitution of India as by law
established *and that I will uphold the sovereignty and integrity of
India." The returned candidate had filed three nomination papers with
three different proposers on January 20, 1967. Each of the three nomination
papers clearly mentioned that he was a candidate for election to fill a seat in
the Vidhan Sabha for the Gujarat State i.e.
Legislative Assembly of the State. The
nomination paper of the returned candidate contained a form of oath or
affirmation which was both in Gujarati as well as in English. The English form
followed word for word Form No.
VII as set out in the Third Schedule, to the
Constitution and the Gujarati form purported to set out the Gujarati
translation of the form of oath or affirmation. The relevant difference for the
purpose of this appeal between the two ,forms lay in this that the
words-"Legislative Assembly" in the form in English were translated
in Gujarati form as "Rajya Sabha" and the appellant's
contention-before-the High Court and before us rested 630 solely on the use of
this word which according to learned counsel went to show that the oath that
was taken was for the purposes of filling a seat not in the legislative
assembly of the State but in the Legislative Council of the State. At the
hearing of the petition before the High Court the returned candidate gave
evidence to the effect that he had taken the oath not according to the words in
the Gujarati form but 'according to the translation of the words in the English
form rendered by the Returning Officer. The Returning Officer was merely called
to produce some documents but he was not put on oath nor was he asked any
question to corroborate the testimony of the returned candidate. The High Court
did not accept this testimony and we see no reason to come to any different
conclusion.
We must therefore proceed on the basis that
the returned candidate took the oath according to the words of the Gujarati
form. It was argued before us that 'Rajya Sabha' means the Legislative Council
of the State *and not the Legislative Assembly of the State and consequently
the oath taken did not fulfill the requirements of Art. 173(a) of the
Constitution. We were not referred to any official translation of the
expression "Legislative Assembly" in Gujarati. The word
"sabha" means a gathering or a meeting or an assembly of persons for
a definite purpose. Giving the word "sabha" the said meaning in the
expression 'Rajya Sabha' it would not be possible to hold that the oath was not
in compliance with the form prescribed in Art. 173(a) of the Constitution. No
doubt by common parlance in many of the States in Northern India the expression
'Rajya Sabha' has come to mean the Legislative Council of a State while the
State Legislative Assembly is generally known as Rajya Vidhan Sabha. But in the
absence of any authoritative translation of the expression "State
Legislative Assembly" in Gujarati we cannot guide ourselves by the popular
rendering of the expression. In this connection it is necessary to mention that
in the State of Gujarat there is no Legislative Council of the State. The
legislature consists of one house only, namely, the State Legislative Assembly.
There could therefore be no misapprehension either in the person taking the
oath or in the Returning Officer when he was accepting the nomination paper
with the oath in Gujarati form that the candidate who afterwards won the
election was being nominated as a candidate to fill a seat in the Legislative
Council of the State and not in the Legislative Assembly.
The High Court held that there was
substantial compliance with the requirements of Art. 173(a) of the Constitution
in the circumstances surrounding the making and the subscribing of the oath
even if the compliance was not literal. We are in full agreement with that
view. The essential requirement of Art. 173(a) of the Constitution for our
present purpose is that in order to be 631 qualified to be chosen to fill a
seat in the Legislature of a State a person (i) must be a citizen of, India and
(ii) must make and subscribe before a person duly authorised an oath or affirmation
according to the form set out for the purpose in the Third Schedule. Form VII-A
contains the following essential requirements:
(1) The person taking the oath or making the
affirmation must have been nominated as a candidate to fill a seat in the Legislative
Assembly or Legislative Council;
(2) That he will bear true faith and
allegiance to the Constitution of India as by law established; and (3) That he
will uphold the sovereignty ,and integrity of India.
The vital requirements, therefore, are (a)
the securing of a nomination, and (b) declaration of beating true faith and
allegiance to the Constitution and a promise to uphold the sovereignty and
integrity of India. The securing of a nomination precedes the making of a
declaration. The real purpose of the oath is that the person concerned must
give an undertaking to bear true faith and 'allegiance to the Constitution and
uphold the sovereignty and integrity of India. This is brought out by the
statement of objects and reasons to the Bill No. 1 of 1963 seeking to amend
Arts. 19, 84 and 173 of the Constitution. The statement of objects and reasons
notes the recommendation of the Committee on National Integration and
Regionalism and its view "that every candidate for the membership of a
State Legislative or Parliament, and every aspirant to, and incumbent of,
public office should pledge himself to uphold the Constitution and to preserve
the integrity and sovereignty of the Union and that forms of oath in the Third
Schedule to the Constitution should be suitably amended for the purpose".
The Bill proposed to give effect to the recommendation by amending clauses (2),
(3) and (4) of Art. 19 as also Arts. 84 and 173 and the forms of oath in the
Third Schedule. The words in the form of oath in Form VII-A.
"I will uphold the sovereignty and
integrity of India" were inserted by the Constitution Fifteenth Amendment
Act 1963 giving effect to the view of the said committee.
As the essential requirements of the oath
given in the form in the Third Schedule were not deviated from in the Gujarati
form used in this case, we cannot hold that the oath subscribed in this case
was not in compliance with Art.
173 merely because of the popular meaning of
the expression 'Rajya Sabha'.
The real question is, whether the deviation,
if any, from the form of oath in English as contained in the Third Schedule is
so 632, vital as to lead to the conclusion that no proper oath was taken by the
returned candidate. There have been many instances where this Court has held
that a substantial compliance with the statute or with the rules framed
thereunder is enough even if there be no literal compliance and in our view
there is no reason to adopt a different line of reasoning in the construction
and interpretation of the Constitution. In all such cases, one must consider
the real purpose of the provision whether statutory or constitutional, to find
out whether notwithstanding the apparently mandatory form of the words used any
deviation therefrom was to be struck down.
One of the questions which came up for
consideration in Kamaraja Nadar v. Kunju Thevar(1) was whether the election
petition ought to have been rejected merely because the deposit provided for
under s. 117 of the Representation of the People Act was made in favour of the
Election Commission and not in favour of the Secretary to the Election
Commission as provided for in the said section. Turning down the argument
advanced for rejecting the election petition it was observed:
"What is of the essence of the provision
contained in s. 117 is that the petitioner should furnish security for the
costs of the petition, and should enclose along with the petition a' Government
Treasury receipt showing that a deposit of one thousand rupees has been made by
him either in a Government Treasury or in the Reserve Bank of India, is at the
disposal of the Election Commission to be utilised by it in the manner
authorised by law .........
" .
In Murarka Radhey Shyam Ram Kumar v. Roop
Singh Rathore(2) one of the points urged against the petitioner was that there
was non-compliance with the provisions of s. 81 (3) of the Representation of
the People Act because the copy of the election petition served on the
appellant was not a true copy of the original filed before the Election
Commission. Rejecting the said contention it was said:
" .... the word "copy" in
sub-s. (3) of s. 81 does not mean an absolutely exact copy, but means that the
copy shall be so true that nobody can by any possibility misunderstand
it." To the similar effect is the judgment in Ch. Subbarao v.
Member, Election Tribunal, Hyderabad(3).
In State of U.P.v. Manbodhan Lal
Srivastava(4) one of the contentions urged on behalf of the respondent who was
reduced (1) [1959] S.C.R. 583. (2) [1964] 3 S.C.R.
573.
[1964] 6S,C.R,213, (4) [1958]S.C.R.533.
633 in rank after departmental enquiry, was
that 'the order of the Government was invalid for non-compliance with the
provisions of Art. 320(3)(c) of the Constitution which read literally made it
obligatory for the Government of India or a Government of a State to consult
the Union Public Service Commission or the State Public Service Commission on
all disciplinary matters affecting a person in service of the State. In turning
down the above it was observed by this Court:
" .... the use of the word shall m a
statute, though generally taken in 'a mandatory sense, does not necessarily
mean that in every case it shall have that effect, that is to say, that unless
the words of the statute are punctiliously followed, the proceeding, or the outcome
of the proceeding, would be invalid." In State of Punjab v. Sat Pal Dang
and State of Punjab v. Dr. Baldev Prakash & Ors.(1) one of the points
canvassed before this Court was, whether the certificate by the Deputy Speaker
on a Money Bill was sufficient compliance with Art.
199(4) of the Constitution which provides
that:
"There shall be endorsed on every Money
Bill when it is transmitted to the ,Legislative Council under article 198 and
when it is presented to the Governor for assent under ,article 200, the
certificate of the Speaker of the Legislative Assembly signed by him that it is
a Money Bill." It was contended that the provisions of the above clause
were mandatory and only the Speaker of the Legislative Assembly could sign the
Money Bill. It was pointed out by this Court that the Speaker was not present
when the Bills were passed and under Art. 180(2) the Deputy Speaker could act
as the Speaker when the latter was absent. This Court proceeded to examine the
several tests to determine when the provisions of statute might be treated as
mandatory ,and when not, and emphasis was laid on one of the distinctions,
namely, in cases where strict compliance was necessary to be a condition
precedent to the validity of the act itself, the neglect to perform it as
indicated was .fatal.
The above cases are sufficient to show that
non- compliance with the provisions of a statute or Constitution will not
necessarily render a proceeding invalid if by considering its nature, its
design and the consequences which follow from its non-observance one is not led
to the conclusion that the legislature or the Constitution makers intended that
there should be no departure from the strict words used.
(1) [1969] 1 S.C.R. 478.
634 In this case, as we have already noted,
the essential requirement of Art. 173 read with Form VII-A was that the person
taking the oath or making the affirmation would bear true faith and allegiance
to the Constitution and uphold the sovereignty and integrity of India. The
words which precede this portion are merely descriptive of the person and of
his nomination as a candidate. It is reasonable to think that a mere misprint
in the form of the oath or a mere inaccuracy in rendering the expression
"Legislative Assembly" in Gujarati would not be fatal to the election
of the candidate, if otherwise valid.
In the result, the appeal fails and is
dismissed with costs.
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