[Indira Nehru Gandhi vs. Shri Raj Narain & Anr. Dated 7.11.1975;]

SUPREME COURT OF INDIA,CONSTITUTION BENCH;

Appeal (Civil) 887 of 1975

Smt.Indira Nehru Gandhi was elected to the House of the People from Rae Bareli Parliamentary Constituency in March, 1971. Her election was challenged by one of the rival candidates Shri Raj Narain, before the Allahabad High Court by an election petition. The High Court, by its judgment and order dated 12.6.1975, allowed the election petition and declared the election of Smt. Indira Nehru Gandhi as void. The High Court held that Smt. Gandhi had procured assistance of Shri Yashpal Kapoor, a Gazetted Officer of the Government of India, the District Magistrate and Superintendent of Police, Rae Bareli, the Executive Engineer, PWD, and the Engineer, Hydel Department, for her election campaign and had thus committed corrupt practices under Section 123 (7) of the Representation of the People Act, 1951.

Aggrieved by the order of the Allahabad High Court, Smt. Indira Nehru Gandhi filed the present appeal before the Supreme Court. A cross-appeal was also filed by Shri Raj Narain. During the pendency of these appeals, Parliament passed the Election Laws (Amendment) Act, 1975. By this Amendment Act, several provisions of the Representation of the People Act, 1951 were amended retrospectively. Further, Parliament also passed the Constitution (Thirty-ninth Amendment) Act, 1975. By this Amendment Act, a new Article 329-A was inserted into the Constitution to provide, inter alia, that the election to Parliament of a person, who holds office of Prime Minister or Speaker of the Lok Sabha at the time of such election or is appointed as Prime Minister or Speaker after such election, shall be called in question only before a specially prescribed authority [and not before the High Court under Article 329 (b) of the Constitution]. Furthermore, by the said Amendment Act, Parliament also validated the election of Smt. Indira Nehru Gandhi.

The validity of the above mentioned two Amending Acts also became subject matter of the present appeals. One of the grounds of attack on the validity of these Acts was that many members of Parliament were subjected to preventive detention after the Proclamation of Emergency in June, 1975 and, therefore, these Acts had not been validly passed by Parliament in their absence.

The Supreme Court, in the present appeals, upheld the validity of the Election Laws Amendment) Act, 1975 and also the validity of the Constitution (Thirty-ninth Amendment) Act, 1975, except that part of the latter Act whereby Parliament had validated the election of Smt. Indira Nehru Gandhi. Applying the law, as amended retrospectively by the aforesaid Election Laws (Amendment) Act, 1975, the Supreme Court upheld the election of Smt. Indira Gandhi to the House of the People, allowing her appeal, and rejecting the cross–appeal of Shri Raj Narain.

Issues and Observations and Holdings

A.    Whether validity of Election Laws (Amendment) Act, 1975 and Constitution (Thirty-ninth Amendment) Act, 1975 can be challenged on ground that a number of Members of Parliament were in detention?

Held

Validity could not be challenged on ground that a number of Members of Parliament were in detention.

Per Ray, C.J. : – The constitution of the House which passed the Constitution (Thirty-ninth Amendment) Act is not illegal on the ground that a number of members of Parliament of the two Houses were detained by executive order after 26 June, 1975. It has also to be stated that it is not open to challenge the orders of detention collaterally. The principle is that what is directly forbidden cannot be indirectly achieved.

Per Khanna, J : – The constitutional validity of the Constitution Amendment Act and the 1975 Act amending the Representation of the People Act cannot be assailed on the ground that some members of Parliament were prevented because of their detention from attending and participating in the proceedings of the respective Houses of Parliament.

The contention that the sittings of the two Houses of Parliament in which the impugned Acts were passed were not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not constitutionally valid because some members of those Houses were prevented from attending and participating in the discussions in those Houses.

The act of detaining a person is normally that of an outside agency and not that of the House of Parliament. It would certainly look anomalous if the act of an outside agency which might ultimately turn out to be not legal could affect the validity of the proceedings of the House of Parliament or could prevent that House from assembling and functioning.

Per Mathew J.: – The detention of members of Parliament was by statutory authorities in the purported exercise of their statutory power. It would be strange if a statutory authority, by an order which turns out to be illegal, could prevent the Houses of Parliament from meeting as enjoined by Article 85. If a statutory authority passes an illegal Order of detention and thus prevents a member of Parliament for attending the House, how can the proceedings of Parliament become illegal for that reason? It is the privilege of parliament to secure the attendance of persons illegally detained. But if the privilege is not exercised by parliament the proceedings of parliament would not become illegal for that reason.

The President, in performing his constitutional function under Articles 352, 359 has not authorised the illegal detention of any person let alone any member of Parliament or unconstitutionally prevented the release from custody of any member. He has only discharged his constitutional functions. If this be so, it is difficult to hold that the session in which the amendments were passed was illegally convened. The challenge to the validity of the amendments on this score must be overruled.

Per Beg, J.: – Constitutional validity of the impugned Acts cannot be challenged on the ground that as a number of members of Parliament belonging to the opposite parties were in detention, under the Preventive detention laws, which could not be questioned before Courts of law, because of the declaration of the emergency by the President, there was a procedural defect in making the impugned enactments. Such an objection is directly covered by the terms of Article 122 which debars every Court from examining the propriety of proceedings ‘‘in Parliament’’. If any privileges of Members of Parliament were involved, it was open to them to have the question raised ‘‘in Parliament.’’

As regards the validity of the detentions of the Members of Parliament, that cannot be questioned automatically or on the bare statement by counsel that certain Members of Parliament are illegally detained with some ulterior object. The enforcement of fundamental rights is regulated by Articles 32 and 226 of the Constitution and the suspension of remedies under these articles is also governed by appropriate constitutional provisions.

Per chandrachud. J.: – There is no merit in the contention that the constitutional amendment is bad because it was passed when some members of the Parliament were in detention. The legality of the detention orders cannot be canvassed collaterally. And from a practical point of view, the presence of 21 members of the Lok Sabha and 10 members of the Rajya Sabha who were in detention could not have made a difference to the passing of the Amendment.

B.    Whether Articles 329-A(4) and (5) as inserted by Constitution (Thirth-ninth Amendment) Act, 1975, validating the election in question, is constitutionally valid?

Held

Per Majority – (Khanna, Mathew and Chandrachud, JJ.) : –

Clause (4) of Article 329-A as introduced by the Constitution 39th Amendment Act of 1975 is unconstitutional.

Per Khanna, J. : – Clause (4) of Article 329-A is liable to be struck down on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the aforesaid election.

Per Mathew, J. : – Our Constitution, by Article 329 (b) visualizes the resolution of an election dispute on the basis of a petition presented to such authority and in such manner as the appropriate legislature may, by law, provide. The nature of the dispute raised in an election petition is such that it cannot be resolved except by judicial process, namely, by ascertaining the facts relating to the election and applying the preexisting law: when the amending body held that the election of the appellant was valid, it could not have done so except by ascertaining the facts by judicial process and by applying the law. The result of this process would not be the enactment of constitutional law but the passing of a judgement or sentence. The amending body, though possessed of judicial power, had no competence to exercise it, unless it passed a constitutional law enabling it to do so. If, however, the decision of the amending body to hold the election of the appellant valid was the result of the exercise of an ‘irresponsible despotic discretion’ governed solely by what it deemed political necessity or expediency, then, like a bill of attainder, it was a legislative judgement disposing of a particular election dispute and not the enactment of a law resulting in an amendment of the Constitution. And, even if the latter process (the exercise of despotic

discretion) could be regarded as an amendment of the Constitution, the amendment would damage or destroy an essential feature of democracy as established by the Constitution, namely, the resolution of election dispute by an authority by the exercise of judicial power by ascertaining the adjudicative facts and applying the relevant law for determining the real representative of the people. The decision of the amending body cannot be regarded as an exercise in constituent legislative validation of an election. There can be no legislative validation of an election when there is dispute between the parties as regards the adjudicative facts; the amending body cannot gather these facts; by employing legislative process; they can be gathered only by judicial process. The amending body must change the law retrospectively so as to make the election valid, if the election was rendered invalid by virtue of any provision of the law actually existing at the time of election: Article 368 does not confer on the amending body the competence to pass any ordinary law whether with or without retrospective effect. Clause (4) expressly excluded the operation of all laws relating to election petition to the election in question. Therefore, the election was held to be valid not by changing the law which rendered it invalid.

Equality is a multi-coloured concept incapable of a single definition. It is a notion of many shades and connotations. The preamble of the Constitution guarantees equality of status and of opportunity. They are nebulous concepts and it is not sure whether they can provide a solid foundation to rear a basic structure. The types of equality which our democratic republic guarantees are all subsumed under specific articles of the constitution like Articles 14, 15, 16, 17, 25 etc. and there is no other principle of equality which is an essential feature of our democratic polity.

There is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the Constituent elements of the concept. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law even if it is assumed that rule of law is a basic structure, the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in article 14. May be, the other articles referred to do the same duty.

The concept of equality which is basic to rule of law and that which is regarded as the most fundamental postulate of republicanism are both embodied in Article 14. If according to the majority in Bharati’s case (AIR 1973 SC 1461) Article 14 does not pertain to basic structure of the Constitution, which is the other principle of equality incorporated in the Constitution which can be a basic structure of the Constitution or an essential feature of democracy or rule of law?

Per Chandrachud, J. : – Clauses (4) and (5) of Article 329-A are unconstitutional. These provisions are an outright negation of the right of equality conferred by Art. 14, a right which more than any other is a basic postulate of our Constitution. The provisions are arbitrary and are calculated to damage or destroy the Rule of Law.

It is beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of Constitution, they are that : (i) India is a Sovereign Democratic Republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion and that (iv) the Nation shall be governed by a Government of laws, not of man.

It is impossible to subscribe to the view that the Preamble of the Constitution holds the key to its basic structure or that the preamble is too holy to suffer a human touch. Though our Preamble was voted upon and is a part of the Constitution, it is really ‘‘a preliminary statement of the reasons’’ which made passing of the constitution necessary and desirable. The Preamble of our Constitution cannot be regarded as a source of any prohibitions or limitations.

Since the Constitution, as originally enacted, did not consider that judicial power must intervene in the interests of purity of elections, judicial review cannot be considered to be a part of the basis structure in so far as legislative elections are concerned. The theory of Basic Structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem. It is not possible, therefore, to accept the contention that Cls. (4) and (5) of Art. 329-A are unconstitutional on the ground that by those provisions, the election of the Prime Minister is placed beyond the purview of Courts.

Equally, there is no substance in the contention that the relevant clauses of the 39th Amendment are in total derogation of ‘Political Justice’ and are accordingly unconstitutional. The concept of political justice of which the Preamble speaks is too vague and nebulous to permit by its yardstick the invalidation of a Constitutional amendment.

The contention that ‘‘Democracy’’ is an essential feature of the Constitution is unassailable. But the impugned provisions do not destroy the democratic structure of our government. The rule is still the rule of the majority despite the 39th Amendment and no law or amendment of the fundamental instrument has provided for the abrogation of the electoral process.

The 39th Amendment is, however, open to grave objection on other grounds, in so far as clauses (4) and (5) of Article 329-A are concerned. Generality and equality are two indelible characteristics of justice administered according to law.

It is the common man’s sense of Justice which sustains democracies and there is a fear that the 39th Amendment, by its impugned part, may outrage that sense of justice. Different rules may apply to different conditions and classes of men and even a single individual may, by his uniqueness, form a class by himself. But in the absence of a differentia reasonably related to the object of the law, justice must be administered with an even hand to all.

The Parliament, by clause (4) of Article 329-A, has decided a matter of which the country’s Courts were lawfully seized. Neither more nor less. It is true, that retrospective validation is a well-known legislative process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy cases and a variety of other matters. But in all of these cases, what the legislature did was to change the law retrospectively so as to remove the reason of disqualification, leaving it to the Courts to apply the amended law to the decision of the particular case. The exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the contexts even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.

It is contrary to the basic tenets of our Constitution to hold that the Amending Body is an amalgam of all powers – legislative, executive and judicial. ‘‘Whatever pleases the emperor has the force of law’’ is not an article of democratic faith. The basis of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the Government will be discharged and the power of the State shall be used.

Per Ray, C.J. : – When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers.

The Constitution permits by amendment exclusion of judicial review of a matter if it is necessary to give effect to the Directive Principles of State Policy. A similar power may be available when such exclusion is needed in the larger interest of the security of the State. In either case of the exclusion of judicial review does not mean that principles of equality are violated. It only means that the appropriate body making the law satisfied itself and determines conclusively that principles of equality have not been violated. That body conclusively makes classification for the purpose of applying the principles of equality.

Decisions in election disputes may be made by the legislature itself or may be made by courts or tribunals on behalf of the legislature or may be made by courts and tribunals on their own exercising judicial functions. In cases of disputes as to election, the concept of free and fair election means that disputes are fairly and justly decided. Electoral offences are statutory ones. It is not possible to hold that the concept of free and fair election is a basic structure.

Clause (4) suffers from these infirmities. First, the forum might be changed but another forum has to be created. If the constituent power became itself the forum to decide the disputes constituent power by repealing the law in relation to election petitions and matters connected therewith did not have any petition to seize upon to deal with the same. Secondly, any decision is to be made in accordance with law. Parliament has power to create law and apply the same. In the present case, the constituent power did not have any law to apply to the case, because the previous law did not apply and no other law was applied by clause (4). The validation of the election in the present case is, therefore, not by applying any law and it, therefore, offends Rule of Law.

It is true that no express mention is made in our Constitution of vesting the judiciary the Judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary.

The constituent power is sovereign; Law making power is subject to the Constitution. Parliament may create forum to hear election disputes. Parliament may itself hear election disputes. Whichever body will hear election disputes will have to apply norms. Norms are legal standards. There is no discrimination if classification on rational basis is made for determination of disputes relating to persons holding the office of Prime Minister or the Speaker. The changes effected by the Amendment Acts, 1974 and 1975 apply to all and there is no discrimination. Retrospective legislation is not by itself discrimination. The changes introduced to the 1951 Act apply to all.

Clause 4 of Article 329-A in the present case in validating the election has passed a declaratory judgement and not a law. The legislative judgement in clause 4 is an exercise of judicial power. The constituent power can exercise judicial power but it has to apply law. The validation of the election is not by applying legal norms. Nor can it be said that the validation of election in Cl4. is by norms set up by the constituent power.

Clause 5 in Article 329-A states that no appeal against any order of any court referred to in clause 4 pending, before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 before the Supreme Court, shall be disposed of in conformity with the provisions of clause 4. The appeal cannot be disposed of in conformity with the provisions of clause 4 inasmuch as the validation of the election cannot rest on clause 4.

Per Beg. J: – As it is well established that it is the Constitution and not the constituent power which is Supreme in the sense that the Constitutionality of the Constitution cannot be called in question before the Court but the exercise of the constituent power can be, the court has to judge the validity of exercise of the constituent power by testing it on the anvil of constitutional provisions. According to the majority view in Keshvananda’s case (AIR 1973 SC 1461), the Court can find the test primarily in the Preamble to the Constitution. The preamble furnishes the yard-stick to be applied even to constitutional amendments.

According to Article 329 (b) an election dispute can only be resolved by an election petition before a forum provided by an ordinary enactment. In exercise of its powers under Article 329 (b) The Parliament had enacted the Representation of the People Act (1951). The procedure provided by the Act had the binding force of a constitutionally prescribed procedure. It could not be circumvented unless with reference to cases covered by Article 329-A (4), it had been first repealed. Only after such a repeal could any other forum or procedure be legally adopted. It could not be assumed by reason of Article 105 (3), that the prescribed forum had shifted to Parliament itself, and that Parliament, in exercise of its constituent function, had both legislated and adjudicated.

 The well-recognised rule of construction of statutes, which must apply to the interpretation of the Constitution as well, is : ‘‘Expressio Unius Est Exclusio Alterius’’, From this is derived the subsidiary rule that an expressly laid down mode of doing something necessarily prohibits the doing of that thing in any other manner. Therefore, what is separately, expressly, and especially provided for by Article 329 (b) must necessarily fall outside the purview of Article 105 (3) on the principle stated above. Moreover, Article 105 (3) contained a temporary provision until other provision was made by Parliament in that behalf. Appropriate provisions were enacted by the Act of 1951 in compliance with Article 329 (b) because that was the proper Article for it. It would be idle to contend that these provisions suddenly lapsed or ceased to exist as soon as parliament took up consideration of the issues and the grounds of the decision on them by the High Court to which reference is made in Article 329-A (4). Again, a purported exercise of power, in enacting Article 329-A (4), would only be a law making power and not any other power which could conceivably fall under Article 105 (3).

The Act of 1951, enacted under the provisions of Article 329 (b) of the Constitution, provided a procedure which could not be circumvented. This procedure was certainly applicable until 10-8-1975 when the 39^th Amendment received Presidential assent. Rights of appeal under Section 116-A of the Act of 1951 having been invoked by the returned candidate, the Prime Minister as well as by the election petitioner, and the operation of the High Court’s order having been suspended, the position was, in the eyes of law, that the election dispute was continued by a proceeding, exclusively prescribed by Article 329 (b) for the resolution of the dispute, pending in the Supreme Court Despite the impression created by the terms of the declaration at the end of clause (4) of Article 329-A, the Court cannot assume that Parliament took over the case into its own hands to decide it and to incorporate the result in the form of Article 329-A (4) so that this may take the place of a possible judgement of the Supreme Court. Parliament could not be deemed to be unaware of the bar created by Article 329 (b) and the 1951 Act. Parliament could not therefore be assumed to have withdrawn and then to have decided a particular case in a particular way by applying its own norms. It is presumed to know the law. Ostensibly, Article 329-A (4) is part of an amendment of the Constitution for the purposes found in the Statement of Objects and Reasons. Only the declaration given at the end of it suggests that, in the course of it, the effect upon the case before the Supreme Court was considered and dealt with.

(Paras 600, 604)

If the contention that the 39th Amendment bars the jurisdiction to hear the appeals under Section 116-A of the Act of 1951 on merits is accepted, the total effect would be that justice would appear to be defeated even if, in fact, it is not so as a result of the alleged bar to the Court’s jurisdiction if it were held to be there. It could not be the intention of Parliament that justice should appear to be defeated.

It is a well-established canon of interpretation that out of two possible interpretations of a provision, one which prevents it from becoming unconstitutional should be preferred if this is possible – ut res magis valeat quam pereat. It is true that the deeming provision seems to stand in the way of examining the merits of the case even though there is no direct provision taking away court’s jurisdiction to consider the merits of the appeals before the Courts. A deeming provision introducing a legal fiction must be confined to the context of it and cannot be given a large effect. In other words the Court should examine the context and the purpose of the legal fiction and confine its effects to these. Therefore the context and the political considerations placed before the Court could be relevant in understanding the real meaning of clause (4) of Article 329-A. (Case law discussed).

If the purpose of the clause (4) of Article 329-A was purely to meet the political needs of the country and was only partly revealed by the policy underlying the Statement of Objects and Reasons it seems possible to contend that it was not intended at all to oust the jurisdiction of the Court. Hence, Article 329-A clause (5) will not so understood, bar the jurisdiction of the Court to hear and decide the appeals when it says that the appeal shall be disposed of in conformity with the provisions of clause (4). On interpretation of clauses (4) and (5) it was held that Article 329-A (4) did not stand in the way of the consideration of the appeals before the Court on merits under the Act of 1951 or the validity of the amendments of the Act.

It was also observed by his Lordship that he fails to see what danger to the Country could arise or how national interests could be jeopardised by a consideration and a decision by the Supreme Court of such a good case as the Prime Minister of this Country had on facts and law.

C.     Whether obtaining or procuring assistance from Government Servant amounted to corrupt practice as contemplated under section 123(7) of 1951 Act?

Held

Corrupt practice contemplated by S. 123 (7) cannot be committed by any person before there is a 'candidate' for an election.

Per Khanna. J.: – There is nothing to indicate that the word ‘‘candidate’’ in clause (7) of Section 123 has been used merely to identify the person who has been or would be subsequently nominated as a candidate. A definition clause in a statute is a legislative device with a view to avoid making different provisions of the statute to be cumbersome. Where a word is defined in the statute and that word is used in a provision to which that definition is applicable the effect is that wherever the word defined is used in that provision, the definition of the word gets substituted. Reading the word ‘‘candidate’’ in Section 123 (7) in the sense in which it has been defined as a

result of the amendment made by Act 40 of 1975, the only reasonable inference is that the person referred to as a candidate in that clause should be a person who has been or claims to have been duly nominated as a candidate at an election and not one who is yet to be nominated.

Per Mathew, J. : – There can be no doubt that Section 100 (1) (b), when it speaks of commission of corrupt practice by a returned candidate, it can only mean commission of corrupt practice by a candidate before he became a returned candidate. Any other reading of the subsection would be absurd. But there is no such compulsion to read the word ‘candidate’ in Section 123 (7) in the same manner. It is the context that gives colour to a word. A word is not crystal clear, Section 79 of the Act indicates that the definitions therein have to be read subject to the context. The legislature must fix some point of time before which a person cannot be a ‘candidate’ in an election and a wide latitude must be given to the legislature in fixing that point.

In the instant case it was held that the returned candidate became candidate only on the date of filing of her nomination paper.

Per Beg. J. : – The corrupt practice defined in Section 123 (7) could not be committed by any person before there was a ‘candidate’ for an election.

A holding out as a ‘candidate’ within the meaning of Section 79 (b) must be by declaration of the candidate to an elector or to the electorate in a particular constituency and not to others. There is a gap between intent and action which has to be filled by proof of either statements or of conduct which amount to unequivocal declarations made to voters in the constituency in order to amount to a ‘‘holding out’’ to them. Absence of proof of a desire to change the constituency is not proof of a positive ‘‘holding out’’. What is relevant is not what other people think or say about what a possible candidate would do, but what the candidate concerned himself has said or done, so as to amount to ‘a holding out’ as a candidate by the candidate from a particular constituency.

In any case, if there was any uncertainty at all in the law, it has been removed by amendment of Section 79 (b) by Section 7 of Election Laws (Amendment) Act No. 40 of 1975. According to the amended definition ‘candidate’ means a person who has been or claims to have been duly nominated as a candidate at any election.

In the instant case, the respondent to the election petition, the Prime Minister filed her nomination from the Rae Bareilly constituency on 1-2-1971. One K who was a Central Government servant and a Gazetted officer of the rank of an Under Secretary was deputed to serve in the Prime Minister’s Secretariat as an officer on special duty. As he had political ambitions he, after expressing his desire to the Prime Minister to resign from his post submitted his resignation on 13-1-1971 to one H who was incharge of the Prime Minister’s Secretariat. H relying upon R 3 of the Government of India Transaction of Business Rules orally accepted the resignation as the head of the Prime Minister’s Secretariat. His resignation tendered on 13-1-1971 was accepted by the President of India on 25-1-1971 with effect from 14-1-1971 by means of a notification published on 6-2-71. The respondent appointed K her election agent on 1-2-71 K did not work in the Prime Minister Secretariat after 13-1-71 and he drew no salary as government servant after that date. It was alleged that K made certain speeches on different dates between 7-1-71 to 25-1-71 supporting the respondent's candidature in Rae Bareily constituency. There was no evidence whatsoever from any source that K did so either after having been requested by the respondent to do so or with her knowledge of consent or approval. There was also no evidence that K was constituted a sort of general de facto agent of the Prime Minister even before he became her election agent on 1-2-71. The uncontroverted evidence was that K went to Rae Bareilly voluntarily. Despite the large number of speeches and statements, the respondent might have made throughout the country in this period not a single statement made by her could even be cited in which she had said before 1-2-1971 that she was standing as a candidate from the Rae Bareily constituency.

Held that no corrupt practice could be said to have been committed by the respondent vicariously due to anything done by K because he acted voluntarily as he was not a Government servant after 14-1-1971 and the respondent was not a candidate before 1-2-1971 i.e. the date of filing of her nomination. She became a candidate only on 1-2-1971.

Neither the Government nor the Government servant is in a worse position than an ordinary master or servant on a matter governed by contract. In fact, Article 310 makes it clear that in such a case, the tenure of office of a Central Government servant is ‘‘during the pleasure of the President’’. In the instant case the President’s pleasure was contained in the notification dated 25-1-1971 showing that the President had accepted the resignation of K with effect from the forenoon of 14-1-1971. And, this is what K himself wanted. Hence, there is no difficulty at all in accepting the correctness of resignation effective from the date which both parties to the contract on patent facts had agreed to. No rights of an innocent 3rd party were either involved or affected by such an acceptance of the resignation from the date immediately after the date on which K had tendered his resignation. That was also the date after which he had ceased to work or draw his salary.

As the assistance which K may have rendered was entirely voluntary without any request or solicitation from the respondent it did not make any difference to the result even if K had continued to be a Government servant upto 25-1-1971.

The answer of the Prime Minister at the Press Conference on 29-12-1970 or the contents of her speech in Coimbatore in early January, 1971 or even a declaration or announcement of the All India congress Committee on 29-1-1971 assuming that there was such an announcement could not mean that the Prime Minister had herself finally decided to contest from the Rae Bareily constituency and had held herself out as a candidate for this constituency. This holding out had to take place by the Prime Minister herself and not by the Congress Committee.

(Para 451)

D.    Whether Cow and Calf is a religious symbol?

Held: No

Per Ray C. J. : – It is impossible to hold that because one party has not been given the symbol of cow, calf and milk-maid, therefore, the symbol of cow and calf becomes a religious symbol.

Per Beg. J. : – A cow is not a religious symbol. The use of pictures of this excellent and useful animal is so frequently made today for commercial purposes or purposes other than religious that the representation of a cow and calf cannot, except in some special and purely religious contexts be held to have a religious significance. In addition the proviso inserted at the end of Section 123 (3) by Act 40 of 1975 has made the position on this point very clear.

E.     Whether provisions of Elections Laws (Amendment) Act 140 of 1975, sections 7, 8 and 10 are valid?

Held: Valid

Per Ray. C.J.: –The constitutional validity of a statute depends entirely on the existence of the legislative power and the express provision in Article 13. Apart from the limitation, the legislature is not subject to any other prohibition. The amendments made to the 1951 Act by the amendment Acts, 1974 and 1975 are to give effect to certain views expressed by the Supreme Court in preference to certain views departed from or otherwise to clarify the original intention. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of service. Parliament has power to state what can be considered to be office of profit. Parliament has power to state as to what will and what will not constitute corrupt practice. Parliament has power to enact what will be the ground for disqualification. Parliament has power to define "candidate." Parliament has power to state what symbols will be allotted to candidates at election. These are all legislative policies.

The conclusive evidence or conclusive proof clause is an accepted legislative measure. Similarly, given retrospective effect to legislative amendment is accepted to be valid exercise of legislative power.

The rendering of a judgement ineffective by changing the basis by legislative enactment is not encroachment of judicial power because the legislation is within the competence of the legislature.

The contention that the amendment of the definition of ‘‘candidate’’ has damaged or destroyed basic structure is untenable. There is no basic structure or basic feature or basic framework with regard to the time when under the Election Laws a person is a candidate at the election. The word ‘‘candidate’’ in relation to various electoral offences shows that he must be a candidate at the time of the offence. Time is necessary for fixing the offences.

(Para 141)

There is no vice of delegation in the statutes.

The contention that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic frame-work fails on two grounds. First, legislative measures are not subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharati’s case, (AIR 1973 SC 1461) is that the 29^th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.

Per Khanna J. – The provisions of Sections 7, 8 and 10 of Act 40 of 1975 are valid and do not suffer from any constitutional infirmity.

In the case of provisions of the amended law are abused. The proper course in such an event would be to strike down the action taken under the amended law and not the law itself.

Per Mathew. J. – Representation of the People (Amendment) Act (1974) and Election Laws (Amendment) Act (1975) are valid.

Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which could operate as limitation upon that power. The preamble though a part of the Constitution, is neither a source of power nor a limitation upon that power.

An ordinary law cannot be declared invalid for the reason that it goes against the vague concepts of democracy, justice political economic and social; liberty of thought, belief and expression, or equality of status and opportunity, or some invisible radiation from them.

The Constitution has entrusted the task of framing the law relating to election to Parliament, and, subject to the law made by Parliament to the State Legislatures. An important branch of the law which sounds in the area of free and fair election, namely, delimitation of constituencies and allotment of seats to such constituencies is put beyond the cognizance of court. When it is found that the task of writing the legislation on the subject has been committed to Parliament and State Legislatures by the Constitution, it is not competent for a court to test its validity on the basis of some vague norms of free and fair election.

The doctrine of the ‘spirit’ of the Constitution is a slippery slope the courts are not at liberty to declare an act void, because, in their opinion, it is opposed to the spirit of democracy or republicanism supposed to pervade the Constitution but not expressed in word.

Even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to basic structure. But the Act cannot be attacked for a collateral reason, namely the provisions of the Act have destroyed or damaged some other basic structure says, for instance, democracy or separation of powers.

So if it be assumed that these election laws amendment Acts even after they were put in the Ninth Schedule by constitutional amendment remained open to attack for contravention, if any, of the fundamental rights these Acts would not be open to attack on the ground that their provisions destroyed or damaged an essential feature of democracy, namely free and fair election. The Acts remain part of the ordinary law of the land. They did not attain the status of constitutional law merely because they were put in the Ninth Schedule.

Retrospective operation of any law would cause hardship to some persons or other. This inevitable; but that is no reason to deny to the legislature the power to enact retrospective law. In the case of a law which has retrospective effect, the theory is that the law was actually in operation in the past and if the provision of the Acts are general in their operation, there can be no challenge to them on the ground of discrimination or unfairness merely because of their retrospective effect.

Per Beg. J. – The amendments made by Section 7 and 8 read with Section 10 of the Act 40 of 1975 are valid. They cannot be challenged on ground of misuse of power by those who hold the reins of Government; the presumption is that a bona fide use will be made of this power lodged in such responsible hands. If such powers are even exercised in a mala fide manner, it is the particular exercise of the power that can be questioned and struck down. The provision does not become invalid merely because it could be abused as practically any provision of law can be abused by those who may want to do so.

The possibility of misuse of a power given by a statute cannot invalidate the provisions conferring the power. The occasion to complain can only arise when there is such alleged misuse even the possibility of such misuse of this power by so responsible an official as the Election Commissioner cannot be easily conceived of.

The amendment made by the Representation of the People (Amendment) Act 58 of 1974) by adding Explanation (1) to Section 77 (1) could be justified as merely an attempt to restore the law as it had been understood to be previous to decision in AIR 1975 SC 308. (Per Beg. J.)

Per Chandrachud. J. – The argument regarding the invalidity of the Representation of the People (Amendment) Act, 58 of 1974, and of the Election Laws (Amendment) Act, 1975 has no substance.

It does not logically follow from the majority judgement in AIR 1973 SC 1461 that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity : (1) The law must be within the legislative competence of the legislature as defined and specified in Chapter I. Part XI of the Constitution and (2) it must not offend against the provisions of Article 13 (1) and (2) of the Constitution. ‘Basic Structure’, by the majority judgment, is not a part of

the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution.

It is not paradoxical that the higher power should be subject to a limitation which will not operate upon a lower power. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations.

No objection can accordingly by taken to the constitutional validity of the two impugned Acts on the ground that they damage or destroy the basic structure. The power to pass these Acts could be exercised retrospectively as much as prospectively.

F.     Whether amendment of definition of ‘candidate’ retrospectively, valid?

Held: Valid

Per Beg. J. : – The amendment of Section 79 (b) by Section 7 read with Section 10 of the Election laws (Amendment) Act 40 of 1975 is within the unquestionable powers of Parliament to legislate, either prospectively or retrospectively with regard to election matters. It cannot be interpreted as an attack on free and fair elections. Courts cannot take upon themselves the task of laying down what electoral laws should be. The law makers, assembled in Parliament, are presumed to know and understand their business of making laws for the welfare and well being of the mass people of this country, for the protection of democracy and of free and fair election, in accordance with the needs of the democratic process, better than Courts know and understand these. It is only where a piece of legislation clearly infringes a constitutional provision or indubitably overrides a constitutional purpose or mandate or prohibition that Courts can interfere.

G.    Which is supreme, constituent power of the Parliament or the Constitution itself?

Held: The Constitution

Per Beg J.: – The theory advanced that the ‘Constituent power’ is a power of a kind which is above the constitution itself cannot be accepted. If this theory is accepted it would make it unnecessary to have a constitution beyond one consisting of a single sentence laying down that every kind of power is vested in the constituent bodies which may by means of a single consolidated order or declaration of law, exercise any or all of them themselves whenever they please whether such powers be executive, legislative, or judicial. Both the supremacy of the constitution and separation of powers are parts of the basic structure of the constitution.

If “constituent power’’ by itself is so transcendental and exceptional as to be above the provisions of the Constitution itself it should not logically speaking be bound even by the procedure of amendment prescribed by Article 368 (2).

The words ‘constituent power’ were advisedly used in Art 368 (1) (as introduced by the Constitution 24th Amendment Act) so as to clarify the position and not to put in or to include anything beyond constitution making power in Article 368.

The ‘‘constituent power’’ is still bound by the exclusively prescribed procedure to ‘‘amend by way of addition, variation, or repeal’’ any provision of the Constitution. It is entirely a law making procedure elaborately set out in clause (2). The absence of any quasi-judicial procedure, from the comprehensively framed procedural provisions of Art. 368, seems extremely significant. It indicates that it was the clear intention of Constitution makers that no judicial or quasi-judicial function could be performed by Parliament whilst operating in the special constituent field of law making. An omission to provide any quasi-judicial procedure in Article 368 which apparently, furnishes a self-contained code, means that no such power was meant to be included here at all. Proper exercise of judicial power is inseparable from appropriate procedure.

The Constitution undoubtedly specifically vests ‘‘judicial power’’ only in the Supreme Court and in the High Courts and not in any other bodies or authorities whether executive or legislative, functioning under the Constitution.

The claim therefore that an amalgam or some undifferentiated residue of inherent power incapable of precise definition and including judicial power vests, in Parliament in its role as a constituent authority, cannot be substantiated by a reference to any Article of the Constitution whatsoever, whether substantive or procedural. It cannot be said that because the constituent power necessarily carries with it the power to constitute judicial authorities, it must also, by implication mean that the Parliament, acting in its constituent capacity, can exercise the judicial power itself directly without

vesting it in itself first by an amendment of the Constitution.

The term ‘‘sovereign’’ is only used in the preamble of our Constitution. The Constitution is a document recording an act of entrustment and conveyance by the people of India the political sovereign of legal authority to act on its behalf to a ‘‘Sovereign Democratic Republic’’. The expression ‘‘this Constitution’’ in the preamble has a basic structure comprising the three organs of the Republic: the Executive, the Legislature and the Judiciary. It is through each of these organs that the Sovereign will of the people has to operate and manifest itself and not through only one of them. Neither of these three separate organs of the Republic can take over the function assigned to the other. This is the basic structure or scheme of the system of Government of the Republic laid down in this constitution whose identity cannot according the majority view in Kesvandanda’s (AIR 1973 SC 1461) be changed even resorting to Article 368.

The republic is controlled and directed by the constitution to proceed towards certain destinations and for certain purposes only. The Power to change even the direction and purposes is itself divided in the sense that a proposed change if challenged must be shown to have the sanction of all the three organs of the Republic each applying its own methods and principles and procedure for testing the correctness or validity of the measure. If the judicial power operates like a break or a veto, it is not one which can be controlled by any advice or direction to the judiciary as is the case in totalitarian regime. In our system which is democratic its exercise is left to the judicial conscience of each individual judge. This is also a basic and distinguishing feature of Democracy.

Implied limitations of ‘‘a basic structure’’, operating from even outside the language of Art 368 as it stood before the 24th amendment, restrict its scope. These limitations must however, be related to provisons of the Constitution.

H.   Whether Fundamental Rights part of basic structure of the Constitution?

Held:

Adv. Parminder Singh,

Tis Hazari Courts, Delhi