Dr. P. Nalla Thampy Terah Vs. Union of
India & Ors [1985] INSC 125 (8 May 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) BHAGWATI, P.N.
DESAI, D.A.
SEN, AMARENDRA NATH (J) ERADI, V. BALAKRISHNA
(J)
CITATION: 1985 AIR 1133 1985 SCR Supl. (1)
622 1985 SCC Supl. 189 1985 SCALE (1)1148
CITATOR INFO:
R 1987 SC1577 (21)
ACT:
Constitution of India 1950, Art. 14 &
Representation of People Act 1951, S. 77 (1), Explanation 1-Scope of-
Explained-Political parties spending unlimited money in election of their party
candidates-conferment of power- Whether violative of Art. 14 and
unconstitutional.
Conduct of Election Rules, 1961, Rule 90.
Election- Expenditure-Incurrence of-Applicability of ceiling-whether prevalent.
HEADNOTE:
Section 77(1) of the Representation of the
People Act, 1951 provides that every candidate at an election shall, either by
himself or by his election agent, keep a separate and correct account of all
expenditure in connection with the election incurred or authorised by him or by
his election agent, between the date of publication of the notification calling
the election and the date of declaration of the result thereof, both dates
inclusive.
Section 77(3) provides that the total of the
said expenditure shall not exceed such amount as may be prescribed by the Rules
framed under the Act. In Kanwarlal Gupta [1975] 2 SCR 259 the Court observed
that when the political party sponsoring a candidate incurs expenditure in
connection with his election, as distinguished from expenditure on general
party propaganda, and the candidate knowingly takes advantage of it or
participates in the programme or activity or fails to disavow the expenditure
or consents to it or acquiesces in it, it would be reasonable to infer, save in
special circumstances, that he impliedly authorised the political party to
incur such expenditure and he cannot escape the rigour of the ceiling by saying
that he has not incurred the expenditure, but his political party has done so.
In order to get over the judgment in Kanwarlal Gupta, the Representation of the
People(Amendment) Ordinance, 1974 was issued which was replaced by the
Representation of the People (Amendment) Act, 1974. Section 2 of the Amending
Act added two Explanations to section 77(1). Explanation 1 provides that
notwithstanding any judgment, order or decision of any court to the contrary,
any expenditure incurred or authorised in connection with the election of a
candidate by a political party or by any individual (other than the candidate
or his election agent) shall not be deemed to be, and shall not ever be deemed
to have been, expenditure in connection with the election incurred or
authorised by the candidate or by his election agent for the purpose of
sub-Section (1) of Section 77.
623 In the writ petition under Art. 32 the
petitioner challenged the validity of Explanation 1 to section 77(1) of the
Representation of the People Act, 1951 on the grounds:
(i) that it enables political parties to
spend unlimited monies for the election of the candidates sponsored by them,
(ii) that this is arbitrary and violative of Art. 14 because it sanctions
serious discrimination between one political party or individual and another on
the basis of money power,(iii) that it not only permits but encourages and
legitimises the influence of big money in the electoral process and thus
militates against the fairness and purity of the electoral process, (iv) that
it denies to the citizen right to have full and effective participation in the
electoral process and (v) that it nullifies the salutary object of imposing a
ceiling on a candidate's expenditure.
On behalf of the respondent-Union of India it
was contended: (i) that Explanation 1 to section 77(1) of the Act was
introduced to restore the law as expounded in the decisions of this Court prior
to the decision in Kanwarlal Gupta, (ii) that the expenditure incurred by
political parties in connection with the election of their candidates do not
fall within the mischief of section 77(1) read with section 123(6) of the Act,
(iii) that Explanation 1 is not violative of Art. 14 and (iv) that legislative
policies bearing upon matters governing elections are not open to judicial
review.
Dismissing the Writ Petition and C.M.Ps., ^
HELD: 1. Explanation 1 to section 77(1) of
the Representation of the People Act, 1951 neither suffers from any
constitutional infirmity nor it violates Art. 14.
Explanation 1 classifies all political
parties or associations in one group and confers upon them the same or similar
advantage. Political parties or, politically motivated associations or bodies
of persons or, individuals interested in political happenings, are
characterised by common attributes, the dominant attribute being that they
engage themselves in activities of a political nature.
Elections constitute the core of such
activities. A classification of this nature bears reasonable relationship with
the object of the statute that expenses incurred by those who fall within the
particular group should not be regarded as expenditure incurred or authorised
by the candidates or his election agent. Classification has to be broadly
reasonable in order to sustain the challenge of unconstitutionality. One cannot
dissect that process and discover shades within shades to nullify it on the
ground of inequality. [636 G-H; 637 A;C]
2. Explanation 1 to section 77(1) of the Act
says that a political party or any other association or any individual, other
than the candidate or his election agent, can incur expenses, without any
limitation whatsoever, in connection with the election of a candidate. Such
expenses are not deemed to be expenditure in connection with the election
incurred or authorised by the candidate or by his election agent for the
purpose of section 77(1). [636 E-F]
3. As independent candidate who contests an
election without the support of a political party, is at a considerable
disadvantage as compared with candidates supported by political parties. But,
that does not violate the rule of equality. It is not the election law which
creates such inequalities. Inequalities 624 exist apart from that law and are
implicit in the unequal positions in which the citizens find themselves. What
the law does is to allow, in an equal measure, all political parties,
associations or bodies or persons or individuals (other than the candidate or
his election agent) to incur expenses in connection with the election of
candidate, which need not be included in the return of election expenses which
the candidate is required to file. [637 C-E]
4. Preferring political parties for exclusion
from the sweep of monetary limits on election expenses, is not so unreasonable
or arbitrary as to justify the preference being struck down upon that ground
because the statute neither makes the affluence of a political party and
electoral standard for acquiring eligibility prescribed by the Explanation nor
is it an unwise policy to ensure reasonable reduction in the number of
contesting candidates, which can be done by conferring special privileges upon
political parties. In any democratic system of government political parties
occupy a distinct and unique place. It is through them that the people attempt
to voice or ventilate their grievances. Considering the power which they wield
in the administration of governmental affairs, a special conferment of benefits
on them in the matter of modalities governing the election process cannot be
regarded as unreasonable or arbitrary. [637 G-H; 638 B-C]
5. In Kanwarlal Gupta the Court drew a
distinction between the expenses incurred by a political party specifically in
connection with the election of a particular candidate and the expenditure
incurred by it on general party propaganda, the latter not being includible in
the return of election expenses which the candidate has to file.
The rationale of that decision is that by
reason of the important position which political parties occupy they are
entitled to incur expenditure for projecting their programmes and popularising
their policies. Explanation I obliterates the dividing line drawn in Kanwarlal
Gupta between expenses incurred "in connection with' the election of a
particular candidate and expenses incurred on 'general party propaganda'. All
persons, except the candidate and his election agent, are now free to incur
expenditure of the former kind too, without the constraints of ceiling imposed
upon election expenditure by section 77(3) read with Rule 90 of the Conduct of
Election Rules, 1961. [638 C-E]
6. Whether Explanation I restores the law as
it was understood before Kanwarlal Gupta or, it makes an innovation is
irrelevant for deciding upon its validity. Every law, whether restorative or
innovative, has to be tested on the touchstone of the Constitution. [638 G]
7. Election laws are not designed to produce
economic equality amongst citizens. They can, at best, provide an equal
opportunity to all sections of society to project their respective points of
view on the occasion of elections. [639 B]
8. If it is correct that different political
parties have been treated equally though they are situated unequally, or that
individuals have been discriminated against either inter se or in relation to
political parties and associations, the only method which would measure up to
the required constitutional standard is 625 the one in which the State would have
to allocate funds from its own exchequer in order to enable the various
candidates to contest elections. That would be the fairest form of fairness.
[639 D-E]
9. Explanation I would not become
unconstitutional for the reason that it allegedly renders the main provisions
in section 77(1) nugatory by taking away with one hand what is given by the
other. The Explanation does not denude the section of its meaning and make it
purposeless. Section 77(1) deals with the expenditure incurred or authorised
by' a candidate or his election agent, in connection with the election. It is
obligatory to keep a separate and correct account of such expenditure.
Explanation I deals with the expenditure incurred or authorised by a political
party or any other association or body of persons or by an individual other
than the candidate or his election agent. It is not obligatory for the
candidate or his election agent to keep a separate and correct account of such
expenditure, because such expenditure is not incurred or authorised by the
candidate or his election agent and that such expenditure cannot be deemed to
be incurred or authorised by the candidate or his election agent. Section 77(1)
on the one hand and Explanation 1 on the other, deal with two different
situations wherefore, the latter cannot render the former meaningless. [639
F-H; 640 A-B]
10. If an expenditure which purports to have
been incurred, for example, by a political party has in fact been incurred by
the candidate or his election agent, Explanation I will not be attracted. It is
only if the expenditure is in fact incurred or authorised by a political party
or any other association or body of persons or by an individual, (other than
the candidate or his election agent) that the Explanation will come into play.
For seeking protection under Explanation I it must be shown that the source of
the expenditure incurred was not the candidate or his election agent.
Explanation I does not create a fiction. It deals with the realities of
political situations. It does not provide that expenditure in fact incurred or
authorised by a candidate or his election agent, shall not be deemed to be
incurred or authorised by them, if the amount is defrayed by a political party.
The object of the Explanation is to ensure that the expenditure incurred, by a
political party on its own, without using the funds provided by the candidate
or his election agent shall not be deemed to be expenditure incurred or
authorised by the candidate or his election agent. If the expenditure is
incurred from out of the funds provided by the candidate or his election agent
section 77(1) and not Explanation 1 would apply. [640 C-H]
11. The reason why the expression 'shall not
be deemed to be' is used in Explanation 1 is that Parliament wanted to get over
the effect of the judgment of this Court in Kanwarlal Gupta's case. Similarly,
the expression 'shall not ever be deemed to have been' is used in the
Explanation, to get over the effect of that judgment retrospectively, except to
the extent mentioned in clauses (a) and (b) of the Proviso to the Explanation.
[641 B-C]
12. The limited range of Explanation I ought
not to be enlarged. The ceiling placed on election expenses is a basic
commandment of the Act, not a 626 pious edict. Its object is to keep a check on
the expenditure incurred by candidates on their own elections, directly or
through their election agents. They cannot be permitted to resort to
subterfuges in order to evade the restraint imposed by section 77(1) and 77(3)
of the Act.
Homage to the principle of free and fair
elections has to be real, not formal. [641 C-D]
13. The Court is not to lay down policies in
matters pertaining to elections. The Court cannot negate a law on the ground
that it does not approve of the policy which underlies it. The Court might have
its own preferences and perceptions but, they cannot be used for invalidating
laws.
[641 E-F]
14. The right to contest an election or to
vote at it is not a Common Law right. [641 G]
15. The question as regards the
constitutional validity of Explanation 1 has to be determined regardless of the
consideration as to whether the said Explanation restores the law as it stood
before the decision of this Court in Kanwarlal Gupta or whether it introduces a
new provision altogether. [642 E]
16. Influence of big money on the election
process is regarded universally as an evil of great magnitude.
Kanwar Lal Gupta v. Amar Nath Chawla [1975] 2
SCR 259 explained.
Rananjaya Singh v. Baijnath Singh [1955] 1
SCR 671; Ram Dayal v. Brijraj Singh [1970] 1 SCR 530; Magraj Patolia v.
R.K. Birla [1971] 2 SCR 118; Smt. Indira
Gandhi v. Raj Narain [1976] 2 SCR 347; Lok Sabha Debates Vol. XLVII, Nos.
21-27, 12-20 December, 1974 page 279; Vatal
Nagaraj v. R.
Dayanand Sagar [1975] 2 SCR 384, 399; Tata
Iron & Steel Co.
Ltd. AIR 1958 Bombay 155; Indian Iron and
Steel Co. Ltd AIR 1958 Calcutta 234; Report of the Santhanam Committee on
Prevention of Corruption 1962, Section 11, 'Social Climate' Paragraph 11.5;
Report of the Expert Committee on 'Companies and MRTP Acts' 1978, Chapter XIII
pages 99-104; Jyoti Basu v. Debi Ghosal [1982] 3 SCR 318, 326, 327; Halbury's
Law of England, Fourth Edition, Volume 15, Paragraph 721, referred to.
ORIGINAL JURISDICTION: Writ Petition No. 1177
of 1979.
Under Article 32 of the Constitution of
India.
Soli J. Sorabjee, Harish N. Salve and Laxmi
Kant Pandey for the Petitioner.
K. Parasaran, Attorney General, T.S.
Krishnamurty Iyer and Miss A. Subhashini for the Respondents.
627 The Judgment of the Court was delivered
by CHANDRACHUD C.J. The petitioner, Dr. P. Nalla Thampy Thera, is not an
intermeddler or busy body. He is a public- spirited citizen whose motives in
filing this petition are to be admired even if his contentions may not merit
acceptance. By this petition under Article 32 of the Constitution, he
challenges the validity of Explanation I to section 77(1) of the Representation
of the People Act, 1951 (hereinafter referred to as "the Act") which
gives a carte blanche to political parties to spend unlimited monies for the election
of the candidates sponsored by them. In practice, insofar as our little
knowledge of political affairs goes, sky is the limit for such expenditure:
Some call it millions, some call it billions.
The particular provision of the statute which
is under consideration here, has a short, though significant history.
A judgment of this Court led to its
enactment. That judgment, to which one of us, Bhagwati J, was a party, was
delivered on October 3, 1974 in Kanwar Lal Gupta v. Amar Nath Chawla. Section
77(1) of the Act, as it stood then, read thus:
"Every candidate at an election shall,
either by him self or by his election agent, keep a separate and correct
account of all expenditure in connection with the election incurred or
authorised by him or by his election agent, between the date of publication of
the notification calling the election and the date of declaration of the result
thereof, both dates inclusive." Section 77(3) provides that the total of
the said expenditure shall not exceed such amount as may be prescribed, that is
to say, the amount prescribed by the Rules framed under the Act. The
expenditure prescribed for a Parliamentary constituency in the Union Territory
of Delhi was Rs. 10,000. The question before the Court in Kanwar Lal Gupta was whether
the successful candidate, Amar Nath Chawla, had incurred or authorised
expenditure in connection with his election exceeding the ceiling of Rs.
10,000.
Noting that what section 77(1) prohibited was
not only the incurring but also the authorising of excessive expenditure and
that such authorising may be implied or express, the Court observed:
628 "When the political party sponsoring
a candidate incurs expenditure in connection with his election, as
distinguished from expenditure on general party propaganda, and the candidate
knowingly takes advantage of it or participates in the programme or activity or
fails to disavow the expenditure or consents to it or acquiesces in it, it
would be reasonable to infer, save in special circumstances, that he impliedly
authorised the political party to incur such expenditure and he cannot escape
the rigour of the ceiling by saying that he has not incurred the expenditure,
but his political party has done so. A party candidate does not stand apart
from his political party and if the political party does not want the candidate
to incur the disqualification, it must exercise control over the expenditure
which may be incurred by it directly to promote the poll prospects of the
candidate. The same proposition must also held good in case of expenditure
incurred by friends and supporters directly in connection with the election of
the candidate. This is the only reasonable interpretation of the provision
which would carry out its object and intendment and suppress the mischief and
advance the remedy by purifying our election process and ridding it of the
pernicious and baneful influence of big money." On November 7, 1974, Bill
No. 104 of 1974 was introduced in the Lok Sabha in order to get over the
judgment in Kanwar Lal Gupta. The Statement of Objects and Reasons of that Bill
reads thus:
"STATEMENT OF OBJECTS AND REASONS
Section 77 of the Representation of the People Act, 1951 provides that the
total of the expenditure in connection with an election incurred or authorized
by the candidate or his election agent between the date of publication of the
notification calling the election and the date of declaration of the result
thereof shall not exceed such amount as may be prescribed. Rule 90 of the
Conduct of Elections Rules, 1961, seeks to lay down the maximum election
expenses for a parliamentary constituency and an Assembly constituency in
respect of 629 various States and the Union territories. Clause (6) of section
123 of the Representation of the People Act has specifically included the
incurring or authorizing of expenditure in contravention of section 77 as a
corrupt practice, which, if established, would not only vitiate the election,
but also result in disqualifying the candidate for a period of six years under
section 8A of the said Act.
In the Election Law, the emphasis has been on
imposing a curb on an individual incurring expenditure in connection with his
election in excess of the prescribed limit. The provision contained in section
77 of the Act is very specific in this respect and the intention that the curb
is on the expenditure incurred or authorized by the candidate has found support
in the judicial pronouncements on the point. The expression "incurred or
authorized" had not been construed so as to bring within its purview the
expenditure incurred by a political party in its campaign or by any person
other than the candidate unless incurred by such third person as the
candidate's agent. In other words, the provisions of section 77 and clause (6)
of section 123 have been intended and understood to be restraints on the
candidate's election expenditure and not on the expenditure of a political
party.
However, in the recent case of Kanwar Lal
Gupta v. A.N. Chawla and Others (Civil Appeal No. 1549 of 1972 decided on 3rd
October, 1974), the Supreme Court has interpreted the aforementioned expression
"incurred or authorized" as including within its scope expenses
incurred by a political party or other person referred to above. In view of the
effect which such interpretation might have particularly with reference to the
candidates against whom election petitions are pending, it became urgently
necessary to clarify the intention underlying the provisions contained in
section 77 of the Representation of the People Act, 1951, namely, that in
computing the maximum amount under that section any expenditure incurred or
authorized by any other person or body of persons or political parties should
not be taken into account. As Parliament was not in session, the President 630
promulgated on 19th October, 1974, the Representation of the People (Amendment)
Ordinance, 1974.
The Bill seeks to replace this
Ordinance." By section 2 of the Amending Act, which is called. The
Representation of the People (Amendment) Act, 1974, two Explanations were added
to section 77(1), out of which Explanation 1 is directly relevant for our
purpose. Those Explanations read thus:
"Explanation 1.- Notwithstanding any
judgment, order or decision of any court to the contrary, any expenditure
incurred or authorized in connection with the election of a candidate by a
political party or by any other association or body of persons or by any
individual (other than the candidate or his election agent) shall not be deemed
to be, and shall not ever be deemed to have been, expenditure in connection
with the election incurred or authorized by the candidate or by his election
agent for the purposes of this subsection:
Provided that nothing contained in the
Explanation shall affect- (a) any judgment, order or decision of the Supreme
Court whereby the election of a candidate to the House of the People or to the
Legislative Assembly of a State has been declared void or set aside before the
commencement of the Representation of the People (Amendment) Ordinance, 1974;
(b) any judgment, order or decision of a High
Court whereby the election of any such candidate has been declared void or set
aside before the commencement of the said Ordinance if no appeal has been
preferred to the Supreme Court against such judgment, order or decision of the
High Court before such commencement and the period of limitation for filing
such appeal has expired before such commencement.
631 Explanation 2.- For the purposes of
Explanation 1, "political party" shall have the same meaning as in
the Election Symbols (Reservation and Allotment) Order, 1968, as for the time
being in force." The argument of Mr. Sorabjee, who appears on behalf of
the petitioner, may be summed up thus: (1) It is the essence of fair elections
that any individual or any political party, howsoever small, should be able to
contest an election on a footing of equality with any other individual or
political party, howsoever rich and well financed it may be, and no individual
or political party should be able to secure an advantage over others by reason
of its superior financial strength. (2) The rationale of imposing a limit on
expenditure incurred or authorised by a candidate in an election is to
eliminate, as far as possible, the pernicious influence of big money in the
electoral process which leads to the worst form of political corruption.
Limitation on election expenditure is imperative for ensuring the purity of the
electoral process. (3) It is indisputable that availability of large funds and
resources to an individual backed by a political party supporting him would
confer greater and undue advantage on him over an individual who is without any
links with affluence or wealth. (4) Such a consequence is anti-democratic
because it denies to the citizen the right to have full and effective
participation in the electoral process. (5) Explanation 1 to section 77(1)
strikes at the very heart of democracy inasmuch as is not only permits but
encourages and legitimises the influence of big money in the electoral process
and thus militates against the fairness and purity of the electoral process.
Furthermore, it makes a mockery of and
nullifies the salutary object of imposing a ceiling on a candidate's
expenditure, which provision is a beneficent provision enacted in the interests
of purity and genuineness of the democratic process. The impugned provision,
far from suppressing the mischief of baneful influence of big money directly
promotes it and thereby sullies the purity of the electoral process.
Consequently, it goes against the 'basic requirement of the Constitution' and
violates a basic and essential feature of the Constitution and, consequently,
is arbitrary. (6) The impugned provision is further violative of article 14,
because it sanctions serious discrimination between one political party or
individual and another on the basis of money power. It makes the wealth of
affluence of the political party supporting the candidate the decisive factor
in the outcome of elections. It introduces wealth and affluence as a measure of
a candidate's qualifications or prospects of 632 success, which is to
'introduce a capricious or irrelevant factor'. (7) Once the franchise is
granted to the electorate, provisions may not be made nor conditions imposed
which are inconsistent with article 14 of the Constitution, irrespective of the
fact that the right of franchise is not a fundamental right guaranteed in Part
III of the Constitution.
Shri Krishnamoorthy Iyer, who appears on
behalf of the Union of India, contends that Explanation 1 to section 77(1) of the
Act was introduced in order to restore the law as expounded in the decisions of
this Court, prior to the decision in Kanwar Lal Gupta. Those decisions,
according to learned counsel, are: Rananjaya Singh v. Baijnath Singh, Ram Dayal
v. Brijraj Singh and Magraj Patolia v. R.K. Birla. It is urged that though
these decisions have been considered in Kanwar Lal Gupta, the Court was not
right in holding that the view taken in those decisions was not at variance
with the view taken by it. In support of this argument, our attention was drawn
to the observations made by Beg J. in Smt. Indira Gandhi v. Raj Narain to the
following effect:
"After examining the catena of cases, I
think, with great respect, that the decision of this Court in Kanwar Lal
Gupta's case could be understood to point in a direction contrary to that in
which the previous cases were decided. Hence, it appears to me that the
amendment made by Act 58 of 1974 by adding the Explanation 1 to Section 77 of
the Act could be justified as merely an attempt to restore the law as it had
been understood to be previous to the decision of the Court in Kanwar Lal
Gupta's case." Counsel also relies on various decisions of the High Courts
in which it was held, prior to the introduction of Explanation 1 to section
77(1), that the expenses incurred by political parties in connection with the
election of their candidates do not fall within the mischief of section 77(1)
read with section 123(6) of the Act. The provision contained in Explanation 1
is attempted to be justified by the respondents on the ground that political
parties have come to stay in our 633 country, that they are indispensable for
the proper functioning of democracy and, therefore, no exception can be taken
if a political party incurs expenditure to ensure the success of the candidates
sponsored by it. Explanation 1 treats all political parties equally and no
violation of Article 14 is involved. Counsel contended finally that legislative
policies bearing upon matters governing elections are not open to judicial
review.
The principal theme of the petitioner's
argument is 'purity of the election process'. All other arguments converge upon
that theme and are intended to give strength and succour to it. There is a vast
amount of literature on the need to preserve the purity of elections. There is
a perceptible awareness amongst political observers, if not amongst active
politicians, that one of the ways to ensure that elections are free and fair is
to weed out the influence of big money which, to use an expression which has
become a household word, is more black than white. The Lok Sabha Debates, while
Explanation 1 was being added to section 77(1) of the Act, show that there was
a consensus amongst the Members of the House that election expenses must be effectively
controlled, which was also reflected in the fact that in almost all countries
of the world where representative form of Government prevails, provisions as to
election expenses are invariably made. On October 18, 1979, the Election
Commission of India circulated a letter to all recognised national and State
parties, proposing revision of the maximum limits of election expenses. In the
'Notes' appended to that letter, the Commission says that the election
"expenditure should be at such reasonably low level as not to defeat the
very purpose of fixing a ceiling on election expenses, i.e. curbing the
influence of 'money power' on elections". While the Janata Government was
in power, it had introduced Bill No. 153 of 1977 to amend the Act by deleting,
inter alia, Explanation 1 which was introduced in Section 77(1) by Amending Act
58 of 1974. The Statement of Objects and Reasons of that Bill, insofar as it
relates to the proposed deletion of Explanation 1 says: "It is considered
that the amendments made in the Representation of People Act, 1951 far from
ensuring free and fair elections may have the effect of increasing money power.
It is, therefore, proposed to amend the Act to restore the position that
obtained earlier". The Bill eventually lapsed.
In Kanwar Lal Gupta one of us, Bhagwati J.,
observed:
634 "The other objective of limiting
expenditure is to eliminate, as far as possible, the influence of big money in
the electoral process. If there were no limit on expenditure, political parties
would go all out for collecting contributions and obviously the largest
contributions would be from the rich and affluent who constitute but a fraction
of the electorate. The pernicious influence of big money would then play a
decisive role in controlling the democratic process in the country. This would
inevitably lead to the worst form of political corruption and that in its wake
is bound to produce other vices at all levels." (P. 266) In Vatal Nagaraj
v. R. Dayanand Sagar Krishna Iyer J, speaking for the Court, observed:
"Money power casts a sinister shadow on
our elections and the political payoff of undue expenditure in the various
constituencies is too alluring for parties to resist temptation. ........ The
likely evasion of the law by using big money through political parties is a
source of pollution of the Indian political process. To channel funds into the
campaign for specific candidates getting around the requirements of the law by
establishing party committees is all too familiar in this and some other countries."
The decision of the Bombay High Court in Tata Iron & Steel Co. Ltd.
exhibiting "considerable uneasiness of mind and a sinking feeling in the
heart", expressed the view that any attempt on the part of any business
house to finance a political party is likely to contaminate the very spring of
democracy. In Indian Iron and Steel Co. Ltd., the Calcutta High Court pointed
out the dangers involved in political parties being financed for election
purposes by large business houses. The High Court observed: "in the bid
for political favouritism by the bait of money, the company who will be the
highest bidder may secure the most unfair advantage over the rival trade
companies". The Court lamented that such a state of affairs 635 will mark
the advent of the voice of the big business in politics and pollute the
political life of the country.
The Report of the Santhanam Committee on
Prevention of Corruption says:
"The public belief in the prevalence of
corruption at high political levels has been strengthened by the manner in
which funds are collected by political parties, especially at the time of
elections. Such suspicions attach not only to the ruling party but to all
parties, as often the opposition can also support private vested interests as
well members of the Government party. It is, therefore, essential that the
conduct of political parties should be regulated in this matter by strict
principles in relation to collection of funds and electioneering. It has to be
frankly recognised that political parties cannot be run and elections be fought
without large funds. But these funds should come openly from the supporters or
sympathisers of the parties concerned.
If even one family in three pays one rupee a
year to a political party, the total annual contribution will be more than what
is needed for all legitimate purposes of all political parties in India. It is
the reluctance and inability of these parties to make small collections on a
wide basis and the desire to resort to short cuts through large donations that
constitutes the major source of corruption and even more of suspicion of
corruption." The Report of the Expert Committee headed by Justice Sacher
on 'Companies and MRTP Acts' deals extensively with the evils flowing out of
the donations made to political parties by big business houses and points out
the dangers involved in allowing the money power to play a role in the
electoral process of our country. (paragraph 13.12). The Committee recommended
that section 293A of the Companies Act which prohibited contribution by
companies to political parties should be further strengthened in the manner
indicated by it in paragraph 13.18.
636 In England, before the passing of the
Representation of the People Act, 1949, the view had been expressed that
expenses incurred without the authority of the candidate or election agent for
promoting or procuring the election of a candidate might not require to be
returned as election expenses, provided the expenses were incurred by persons
who were outsiders not agents, and accordingly did not have any part in the
conduct or management of the election. It is now provided by the aforesaid Act
that certain expenses with a view to promoting or procuring the election of a
candidate at an election must not be incurred by any person other than the
candidate, his election agent and persons authorised in writing by the election
agent. If any person incurs, or aids, abets, counsels or procures any other
person to incur, any expenses in contravention of this provision, he is guilty
of a corrupt practice. (See Halsbury's Laws of England, Fourth Edition, Volume
15, paragraph 721).
We have referred to this large data in order
to show that the influence of big money on the election process is regarded
universally as an evil of great magnitude. But then, the question which we, as
Judges, have to consider is whether the provision contained in Explanation 1
suffers from any constitutional infirmity and, particularly, whether it
violates Article 14. On that question we find it difficult, reluctantly though,
to accept the contention that Explanation 1 offends against the right to
equality. Under that provision, (i) a political party or (ii) any other
association or body of persons or (iii) any individual, other than the
candidate or his election agent, can incur expenses, without any limitation
whatsoever, in connection with the election of a candidate. Such expenses are
not deemed to be expenditure in connection with the election, incurred or
authorised by the candidate or by his election agent for the purposes of
section 77(1). It is urged that, by reason of this provision, affluent
political parties get an unequal and unfair advantage over other parties or
associations which do not command the same money power and therefore, the
guarantee of equality is violated. The answer to this contention is that
Explanation 1 classifies all political parties or associations in one group and
confers upon them the same or similar advantage. Political parties or,
politically motivated associations or bodies of persons or, individuals
interested in political happenings, are characterised by common attributes, the
dominant attribute being that they engage themselves in activities of a
political nature. Elections constitute the core of such activities. A
classification of this nature bears reasonable relationship with the 637 object
of the statute that expenses incurred by those who fall within the particular
group should not be regarded as expenditure incurred or authorised by the
candidate or his election agent. It is then no answer to say that all political
parties are not equally situated in the wealth which they command. Were such an
argument open, the limit set upon election expenses by Rule 90 shall also have
to be regarded as violative of the guarantee of equality because, a fairly
large number of contesting candidates, particularly the independents, would not
be in a position to spend as large an amount as rupees one lakh, which is the
permissible limit in large constituencies. Classification has to be broadly reasonable
in order to sustain the challenge of unconstitutionally. One cannot dissect
that process and discover shades within shades to nullify it on the ground of
inequality. It is a stark fact of life that an independent who contests an
election on his own, that is, without the support of a political party, is at a
considerable disadvantage as compared with candidates supported by political
parties. But, that does not violate the rule of equality. It is not the
election law which creates such inequalities. Inequalities exist apart from
that law and are, unfortunately, implicit in the unequal positions in which the
citizens find themselves. What the law does is to allow, in an equal measure,
all political parties, associations or bodies of persons or individuals (other
than the candidate or his election agent) to incur expenses in connection with
the election of a candidate, which need not be included in the return of
election expenses which the candidate is required to file.
Though Explanation 1 clubs associations,
bodies of persons and certain individuals together with political parties, it
is plain that the benefit conferred by that provision goes largely, though not
exclusively to political parties. It is the political parties which sponsor
candidates, that are in a position to incur large election expenses which often
run into astronomical figures. We do not consider that preferring political
parties for exclusion from the sweep of monetary limits on election expenses,
is so unreasonable or arbitrary as to justify the preference being struck down
upon that ground. In the first place, the statute does not make the affluence
of a political party an electoral standard for acquiring eligibility prescribed
by the Explanation. Secondly, it is not an unwise policy, to the extent that we
can examine the wisdom of legislative policies, to ensure reasonable reduction
in the number of contesting candidates, which can be done by conferring special
privileges upon political parties. It is a matter of common knowledge that in
the 638 recent elections to the Lok Sabha and the Legislative Assemblies, the
printing of the ballot papers posed a serious problem to the Election
Commission since, the number of contesting candidates in certain constituencies
was absurdly large. In any democratic system of Government, political parties
occupy a distinct and unique place. They are looked upon as guardian angels by
their members though, occasionally, they fail to discharge the benign role of a
guardian, leave alone the angelic part of it. It is through them that the
generality of people attempt to voice or ventilate their grievances.
Considering, also, the power which they wield in the administration of
Governmental affairs, a special conferment of benefits on them in the matter of
modalities governing the election process cannot be regarded as unreasonable or
arbitrary. That may, perhaps, help explain why in Kanwarlal Gupta the Court
drew a distinction between the expenses incurred by a political party
specifically in connection with the election of a particular candidate and the
expenditure incurred by it on general party propaganda, the latter not being
includible in the return of election expenses which the candidate has to file.
The rationale of that decision, though not expressed in so many words, is that
by reason of the important position which political parties occupy in the
democratic set up, they are entitled to incur expenditure for projecting their
programmes and popularising their policies.
Explanation 1 only takes one step ahead,
important though.
It obliterates the dividing line drawn in
Kanwarlal Gupta, between expenses incurred 'in connection with' the election of
a particular candidate and expenses incurred on 'general party propaganda'. All
persons, except the candidate and his election agent, are now free to incur
expenditure of the former kind too, without the constraints of ceiling imposed
upon election expenditure by section 77(3) read with Rule 90 of the Conduct of
Election Rules, 1961. Whether Explanation I restores the law as it was
understood before Kanwarlal Gupta or, it makes an innovation is irrelevant for
deciding upon its validity. Every law, whether restorative or innovative, has
to be tested on the touchstone of the Constitution.
It is evident that a certain class of
individuals has been included in Explanation 1 out of abundant caution, so as
to avoid the challenge that they have been discriminated against in comparison
with political parties and associations or bodies of persons. It is true that
individuals cannot match their spending ability with the 639 financial prowess
of political parties or trade unions. But, that takes one back to the same
point, though in a different garb: All political parties are not equally
affluent and therefore those that command big money get an unfair advantage
over the others. Election laws are not designed to produce economic equality
amongst citizens. They can, at best, provide an equal opportunity to all
sections of society to project their respective points of view on the occasion
of elections. The method, somewhat unfortunate, by which law has achieved that
purpose, is by freeing all others except the candidate and his election agent
from the restriction on spending, so long as the expenditure is incurred or
authorised by those others. The argument, that individuals are not able to reap
the benefit of Explanation 1 effectively by reason of the paucity funds at
their command, has the same answer as the argument that every contesting
candidate cannot afford to spend as large a sum as rupees one lakh and,
therefore, those who can spend that much have an unfair advantage over those
who cannot. If the argument that different political parties have been treated
equally though they are situated unequally, or that individuals have been
discriminated against either inter se or in relation to political parties and
associations to correct, the only method which would measure up to the required
constitutional standard is the one in which the State would have to allocate
funds from its own exchequer in order to enable the various candidates to
contest elections.
That would be the fairest form of fairness.
But, that is a far cry.
Counsel for the petitioners urged that
Explanation 1 renders the main provision in section 77(1) nugatory, by taking
away with one hand what is given by the other.
Assuming that this is so, the Explanation
would not become unconstitutional for that reason. The argument really hears
upon the interpretation of the section and the Explanation, and not upon the validity
of the Explanation. We do not agree that the Explanation denudes the section of
its meaning and makes it purposeless. Section 77(1) deals with the expenditure
'incurred or authorised by' a candidate or his election agent, in connection
with the election. It is obligatory to keep a separate and correct account of
such expenditure. Explanation 1 deals with the expenditure incurred or
authorised by a political party or any other association or body of persons or
by an individual other than the candidate or his election agent. It is not
obligatory for the candidate or his election agent to keep a separate and
correct account of such expenditure. That is because of two reasons. In the
first 640 place, such expenditure is not incurred or authorised by the
candidate or his election agent and therefore, in the very nature of things,
they cannot keep an account of that expenditure. Secondly, the argument that
expenditure of the kind described in Explanation 1 must be deemed to be
incurred or authorised by the candidate or his election agent, is met by the
provision in the Explanation that it shall not be so deemed. Section 77(1) on
the one hand and Explanation 1 on the other, deal with two different situations
wherefore, the latter cannot render the former meaningless.
While we are on this question, we would like
to point out that if an expenditure which purports to have been incurred, for
example, by a political party, has in fact been incurred by the candidate or
his election agent, Explanation 1 will not be attracted. It is only if the
expenditure is in fact incurred or authorised by a political party or any other
association or body of persons, or by an individual (other than the candidate
or his election agent) that the Explanation will come into play. The candidate
cannot place his own funds in the power or possession of a political party, or
a trade union or some other person and plead for the protection of Explanation
1. The reason is that, in such a case, the incurring of the expenditure by
those others, is a mere facade. In truth and substance, the expenditure is
incurred by the candidate himself because, the money is his. What matters for
the purpose of Explanation 1 is not whose hand it is that spends the money.
The essence of the matter is, whose money it
is. It is only if the money expended by a political party, for example, is not
laid at its disposal by the candidate or his election agent that Explanation 1
would apply. In other words, it must be shown, in order that Explanation 1 may
apply, that the source of the expenditure incurred was not the candidate or his
election agent. What is important is to realise that Explanation 1 does not
create a fiction. It deals with the realities of political situations. It does
not provide that the expenditure in fact incurred or authorised by a candidate
or his election agent, shall not be deemed to be incurred or authorised by
them, if the amount is defrayed by a political party. That would be tantamount
to creating a fiction. The object of the Explanation is to ensure that the
expenditure incurred, for example, by a political party on its own, that is,
without using the funds provided by the candidate or his election agent shall
not be deemed to be expenditure incurred or authorised by the candidate or his
election agent. If the expenditure is incurred from out of the funds provided
by the candidate or his election agent 641 section 77(1) and not Explanation I
would apply. It is necessary to make this clarification since, the use in
Explanation 1 of expressions which are generally used when the legislative
intent is to create a fiction, is apt to cause confusion and misunderstanding.
The reason why the expression "shall not be deemed to be" is used in
Explanation 1 is that the Parliament wanted to get over the effect of the
judgment of this Court in Kanwar Lal Gupta.
Similarly, the reason why the expression
"shall not ever be deemed to have been" is used in the Explanation is
that the intention of the Parliament was to get over the effect of that
judgment retrospectively, except to the extent mentioned in clauses (a) and (b)
of the Proviso to the Explanation.
It is essential that the limited range of
Explanation 1 ought not to be enlarged. The ceiling placed on election expenses
is a basic commandment of the Act, not a pious edict. Its object is to keep a
check on the expenditure incurred by candidates on their own elections,
directly or through their election agents. They cannot be permitted to resort
to subterfuges in order to evade the restraint imposed by sections 77(1) and
77(3) of the Act. Homage to the principle of free and fair elections has to be
real, not formal.
The petitioner is not unjustified in
criticising the provision contained in Explanation 1 as diluting the principle
of free and fair elections, which is the cornerstone of any democratic polity.
But, it is not for us to lay down policies in matters pertaining to elections.
If the provisions of the law violate the Constitution, they have to be struck
down. We cannot, however, negate a law on the ground that we do not approve of
the policy which underlies it. Can the Court, for example, strike down Rule 90
on the ground that the limit of rupees one lakh is too high in the Indian
context ? We may have our own preferences and perceptions but, they cannot be
used for invalidating laws.
In so far as election laws are concerned,
there is yet another impediment to contend with. The right to contest and
election or to vote at it is not a Common Law right. As observed by Chinnappa
Reddy, J. in Jyoti Basu v. Debi Ghosal:
"A right to elect, fundamental though it
is to democracy, is, anomalously enough, neither a funda- 642 mental right nor
a Common Law Right. It is pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election.
Outside of statute, there is no right to
elect, no right to be elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory limitation. Concepts
familiar to Common Law and Equity must remain strangers to Election Law unless
statutorily embodied. A Court has no right to resort to them on considerations
of alleged policy because policy in such matters as those relating to the trial
of election disputes, is what the statute lays down... We have already referred
to the Scheme of the Act. We have noticed the necessity to rid ourselves of
notions based on Common Law or Equity. We see that we must seek an answer to
the question within the four corners of the Statute. What does the Act say
?" What does the Act say ? It says through Explanation 1 that persons
other than the candidate or his election agent may, on their own, release their
purse strings and never tie them again.
We have already said that the question as
regards the constitutional validity of Explanation 1 has to be determined
regardless of the consideration as to whether the said Explanation restores the
law as it stood before the decision of this Court in Kanwar Lal Gupta or
whether it introduces a new provision altogether. We have decided upon the
constitutionality of the Explanation on its own terms.
It is, therefore, unnecessary to consider the
pre- Explanation decisions of this Court in Rananjaya Singh v. Baijnath Singh,
Ram Dayal v. Brijraj Singh and Magraj Patolia v. R.K. Birla, except to extract
a passage from the last of these three cases, which reads thus:
"Now coming to the corrupt practice of
incurring expenditure beyond the prescribed limit, in several decisions this
Court has ruled that it is not sufficient for the petitioners to prove merely
that the expenditure more than the prescribed limit had been incurred in
connection with the election,' he must go further and prove that the 643 excess
expenditure was incurred with the consent or under the authority of the
returned candidate or his election agent." In the result, the Writ
Petition and the Civil Miscellaneous Petitions are dismissed. There will be no
order as to costs.
A.P.J. Petition dismissed.
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