Kirpal Singh, M.L.A. Vs. Uttam Singh
& ANR [1985] INSC 228 (9 October 1985)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) VENKATARAMIAH, E.S. (J) ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J) KHALID,
V. (J)
CITATION: 1986 AIR 300 1985 SCR Supl. (3) 622
1985 SCC (4) 621 1985 SCALE (2)749
ACT:
Constitution of India, 1950 - Article 191 (1)
(a) read with section 10 of the Representation of the People Act, 1951
Disqualification for membership, applicability to Public Sector Undertakings -
Right to be elected and Right to speak for the people are questions to be
decided by Parliament and not by the Court - Nature of interim orders to be
passed by the Court in an election appeal when the election was set aside on
grounds not covered by part VII of the Act, explained.
HEADNOTE:
The appellant Kirpal Singh was elected to the
Punjab Legislative Assembly from Majitha constituency at the general elections
held in 1972. His election was set aside by High Court in an Election Petition
filed by one of the defeated candidates on the ground that the nomination paper
of another candidate was improperly rejected by the Returning Officer for the
reason that he was a development officer in the employment of the Life
Insurance Corporation under whose Staff Regulations he was prohibited from
seeking election. The High Court was of the view that the staff regulations
could, at best, make Basant Singh liable to disciplinary action only. In the
appeal under section 116A of the Representation of the People Act, 1951, the
Court passed an interim order enabling the appellant to attend the assembly and
sign the register, without participating in the proceedings or voting, and
without drawing any remuneration.
Subsequent to the filing of the appeal, there
were three general elections with the result the appeal became wholly
infructuous.
Disposing of the appeal, the Court, ^
HELD : 1.1. Where an election is set aside
for no fault of the duly elected candidate, such as a corrupt practice
committed by him or his agent or a disqualification suffered by him, but on the
ground that someone else's nomination had been improperly rejected, the more
appropriate interim order would perhaps be to grant an absolute stay so that
the Constituency may not go unrepresented for no fault of either the elected or
those who elected. [624 C-D] 623
1.2 The awarding of the costs by the High
Court, in such circumstances is uncalled for. The appellant will receive his
remuneration for the period for which he was elected as a legislator. [626 C-D]
1.3 The clear and undoubted object of Article
191(1)(a) to (e) and the provisions of the Representation of the People Act
(including section 10) is the preservation of the purity and integrity of the
election process by preventing Government or State employees from taking part
in the elections. Nowadays the activities of the State are so manifold and
prolific that the State has been forced, in the interests of better management
and administration and in order to further the Directive Principles of State
Policy, to set up various Corporations which are but mere instrumentalities of
the State. Whether the principle of Article 191(1)(a) has to be extended to
employees of State Corporations and other Public Sector Undertakings by
suitable legislation is a question of policy better left to, be decided by the
elected representatives of the people themselves and not to the Court whose
decision can only be confined to interpretation. [625 E-H; 626 A] The Court
recommended to the Government to have several questions posed before it examined
by the Law Commission early.)
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 650 (NCE) of 1975.
From the Judgment and Order dated 14.3. 1975
of the Punjab and Haryana High Court in Election Petition No. 27 of 1972.
R.K. Garg, A.K. Ganguli, M.M. Kshatriya and
Mrs. Vandana Sharma for the Appellant.
G.L. Sanghi, P.H. Parekh and P.K. Manohar for
the Respondents .
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. Shri Kirpal Singh was elected to the Punjab Legislative
Assembly from Majitha Constituency at the general elections held in 1972. His
election was set aside by High Court in an Election Petition filed by one of
the defeated candidates on the ground that the nomination paper of another
candidate was improperly rejected by the Returning Officer. The 624 nomination
paper of One Basant Singh had been rejected on the ground that Basant Singh was
a development officer in the employment of the Life Insurance Corporation and
was therefore ineligible to seek election to the Assembly under the Staff
Regulations of the Life Insurance Corporation. The High Court took the view
that if Basant Singh defied the Staff Regulations and sought election to the
Assembly he might have made himself liable to disciplinary action but that did
not disqualify him from seeking election to the Assembly. So the nomination
paper of Basant Singh was held to have been improperly rejected and the
election of Kirpal Singh was set aside. His election having been set aside he
appealed to this Court under Section 116-A of the Representation of the People
Act. While admitting the appeal, this Court made an interim order enabling the
appellant to attend the Assembly and sign the register, without participating
in the proceedings or voting and without drawing any remuneration. With- out
meaning any disrespect to the learned judges who made the interim order we
think that where an election is set aside for no fault of his, such as a
corrupt practice committed by him or his agent or a disqualification suffered
by him, but on the ground that someone else's nomination had been improperly
rejected, the more appropriate order would perhaps be to grant an absolute stay
so that the Constituency may not go unrepresented for no fault of either the
elected or those who elected.
Subsequent to the filing of the appeal, there
have been three more general elections. The present appeal has thus become
wholly infructuous, indeed a sad commentary on the legal process. Though the
question raised is an important one which may arise again and again in the
future we do not propose to make any pronouncement upon it since we think the
matter is one which should receive the consideration of the Parliament and
suitable legislation be enacted. Under Art.
191(1) of the Constitution a person shall be
disqualified for being chosen as, and for being, a member of the Legislative
Assembly or Legislative Council of a State - (a) if he holds any office of
profit under the Government of India or the Government of any State specified
in the First Schedule, other than an office declared by the Legislature of the
State by law not to disqualify its holder ;
(b) if he is of unsound mind and stands so
declared by a competent court;
625 (c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has
voluntarily acquired the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any
law made by Parliament.
Chapter III of the Representation of the People
Act which certainly is a law made by Parliament within the meaning of Art.
191(1)(e) of the Constitution enumerates some further grounds of
disqualification for membership of Parliament and State Assemblies. In
particular we may refer to Section 10 which says, "Disqualification for
office under Government Company - A person shall be disqualified If, and for so
long as, he is a managing agent, manager or secretary of any company or
corporation (other than a co-operative society) in the capital of which the
appropriate Government has not less than twenty-five per cent share." The
clear and undoubted object of Art. 191(1)(a) to (e) and the provisions of the
Representation of the People Act (including sec. 10) is the preservation of the
purity and integrity of the election process by preventing Government or State
employees from taking part in the elections. But then sec. 10 appears to
confine the disqualification, in so far as it relates to employees of
Government Companies to the 'top-brass' only if such an uncouth expression may
be allowed to creep into the judgment of a Court. Nowadays the activities of
the State are so manifold and prolific that the State has been forced, in the
interests of better management and administration and in order to further the Directive
Principles of State Policy, to set up various Corporations which are but mere
instrumentalities of the State. Is the principle of Art. 191(1)(e) then to be
extended to employees of State Corporations also by enacting appropriate laws
under Art. 191(1)(e)? Or are employees of Public Corporations to be treated
differently from employees of the Government? Are not some of them in a better
position to exert undesirable pressure, than Government employees? On the other
hand, are a tremendously large number of employees of Public Corporations to be
denied the opportunity of being chosen, as representatives of the People? Do
626 all the considerations applicable to Government Employees equally apply to
employees of Public Sector Undertakings? Is there no distinguishing feature.
Are a large mass of highly or moderately literate people to be denied the right
to speak for the people? Is the right to be elected, to be confined, without
meaning any disrespect to anyone to the professional politicians only? These
are some of the vital questions posed and which require to be answered. The
answer should be best given by the elected representatives of the people
themselves. We are not shirking the decision of these questions but our
decision can only be confined to interpretation. Not so, Parliament which can
decide upon the Policy. That is why, we recommend to the Government to have the
matter examined by the Law Commission very early. When a suitable occasion
arises in the future we will, of course, deal with the matter, probably helped
by new legislation.
The High Court has awarded costs against the
appellant.
That was uncalled for. We set aside that part
of the order.
We express no opinion on the other questions.
The appellant will receive his remuneration for the period for which he was
elected as a legislator.
S.R.
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