Constitution of India-Art. 3294 (4) and (5) as inserted by the Constitution (Thirty Ninth Amendment) Act, 1975-Validity of.
Election Laws (Amendment) Act, (Act 40) 1975 and the Constitution of India (Thirty Ninth Amendment) Act, 1975-Validity of Not open to challenge on the score that some members of Parliament were in preventive detention- Scope of Articles 79, 81, 85, 105(3) and 122 of the Constitution of India.
Preventive detention of the Members of Parliament Challenge to Not permissible collaterally while challenging the validity of the Statute.
Representation of the People (Amendment Act 58) of 1974 Validity of.
Election Laws (Amendment Act 40) of 1975-ss. 7, 8 and 10. Validity of Constitution of India Art, 31-B, 245 and 246 intent.
Election Laws (Amendment Act 40) of 1975-S. 7 is only clarification of the amendment is not the State of Law and not changing the law-Validity of the open to challenge when unamended S. Act (Act 43) of 123(7) of the Representation of the People 1951 was not assailed-Amendment is intra vires, the powers of the Parliament to legislate-Constitution of India Art. 327.
Constitution of India-Art. 368 Constituent powers of Parliament- Supremacy of.
Basic structure, theory of Applicability to "ordinary legislation" under Arts. 245, 246 of the Constitution of India.
Representation of the People Act (Act 43) of 1951-S. 123(3) as amended of 1975-Use 1975 이 "Cow by Election Law Amendment Act 40 of -Neither a religious nor a national symbol.
Election expenses-Expenditure "incurred" or "authorised"-Meaning and tesi of authorisation S. 77, 83(1)(b) and 123(6) of the Representation of the People Act 1951-Evidence and proof of allegations of exceeding the limit of authorised expenditure-Candidate not required to disavow or denounce expenditure
Corrupt Practice-Proof of "Mens Rea" and "Actus Reus" is necessary u/s 123(7) of the Representation of the People Act.
Constitution of India Art. 14-Amendment to Election Laws by Act 40 of 1975. special treatment to the Prime Minister and Speaker on account of unique office Placing the statutes in the protected Schedule under Art. 31-B does not offend Art. 14.
Pleading and Evidence in Election petitions-Allegation of corrupt practice- S. 83(1) (b) and 123 of the Representation of the People Act-Insufficient particulars of corrupt practice-No amount of evidence be looked into not really set up.
Adverse inference, presumption of S. 114 illustration (g) of the Evidence Act (Act 1), 1872-Presumption is always optional and one of fact and not obligatory.
Conclusive Proof-Gazette notification of appointment suspension, retirement or resignation of Government employees Cl. 8 of the Election Laws Amendment Act 40 of 1975.
Interpretation of Statutes Rule of construction of provision widely worded.
Review Application Order XXXVIII Supreme Court Rules 1966 read with order XLVII Rule 1 C.P.C. Failure to make a submission is not a ground for reopening or review of a case.
Duty-Counsel's duty while arguing a case, one of law and facts-What is.
Pursuant to the Notification dated January 27, 1971 u/s 14(2) of the Re- presentation of the People Act, 1951, Smt. Indira Nehru Gandhi, the appellant filed her nomination papers on February 1. 1971 before February 3, 1971, the last date therefor fixed by the Election Commission for Rae Barely constituency. The appellant was for a number of years before the election, Prime Minister of India and is since then continuing to hold that office. On his resignation w.e.f. 14-1-1971 the notification of which was gazetted on 25-1-1971 from the post of officer on special duty in the Prime Minister's Secretariat Yashpal Kapur was appointed the election agent of the appellant. The signed form about the appointment of Yashpal Kapur as an election agent was submitted to the Returning Officer on Febrlary 4, 1971 the date of scrutiny. The appel- lant, who was a candidate of the Indian National Congress (R) was allotted the party symbol of "Cow and Calf".
As per the poll results declared on March 10, 1971, the appellant was elect- ed to the House of the People by an overwhelming majority of 1,11,810 votes over her close rival, Shri Raj Narain, a Samyukta Socialist Party Leader. Shri Raj Narain filed an election petition on 24-4-1971 under s. 80 read with of the Representation of the People Act, 1951 s. 100 to challenge the election of the successful returned candidate before the High Court of Allahabad. At the trial of the petition, the petitioner limited the challenge only to the following grounds viz..
(i) The successful candidate procured the assistance of the Armed Forces for arranging her flights by Air Force aeroplanes belicopters, and
(ii) Her election agent Shri Yashpal Kapoor and others distributed clothes and liquor to induce the voters to vote for her.
(iii) She and her election agent made appeals to the religious symbol of "cow and calf".
(iv) Her election agent and others procured vehicles for the free conveyance of voters to the polling station.
(v) She and her election agent incurred or authorised expenditure in violation of s. 77(3) of the Representation of the People Act read with Rule 90 of the Conduct of Election Laws, 1961.
(vi) She obtained assistance of the Gazetted Officers of the Government of Uttar Pradesh for furthering her election prospects by rostrums and providing loudspeakers etc. and
(vii) She held herself out as a Barely Constituency prospective candidate from the Rae immediately after the dissolution of the
Lok Sabha on 27-12-1970 and for furtherance of her election prospects, she obtained the assistance of Shri Yashpal Kapoor a Gazetted Officer in the Government of India holding the post of officer on special duty in the Prime Minister's Secretariat for furthering the same purpose. The learned single Judge of the High Court found the appellant guilty of having committed corrupt practices within the meaning of s. 123(7) of the Representation of the People Act and held
(1) The appellant held herself out as a candidate from the Rae Bareily Parliamentary Constituency on December 29, 1970.
(2) The appellant obtained the assistance of the officers of the Government of U.P., particularly the Dist. Magistrate, Superintendent of Police, the Executive Engineer (PWD) and the Engineer Hydel Dept, for construction of rostrums and arrangement of supply of power to loudspeakers in the meetings held on 1-2-1971, and 25-2-1971 in furtherance of her election prospects and
(3) The status of Yashpal Kapur continued to be that of a gazetted officer despite retrospective acceptance of the resignation and hence she obtained his services in furtherance of her election prospect.
Acting under s. 8A of the Act, the learned Judge also declared that the successful candidate would stand disqualified for a period of six years from June 12, 1975 being the date of the judgment. Aggrieved by this part of the Judgment, Smt. Indira Nehru Gandhi filed an appeal No. 887 of 1975 and the defeated candidate filed cross-appeal No. 909 of 1975.
During the pendency of the election petition in the High Court, the President of India on October 19, 1974 promulgated "The Representation of the People (Amendment) Ordinance, 1974" which was replaced by Act 58 of 1974.
The Representation of the People (Amendment Act 58) of 1974 by way of an explanation to s. 77 of the Act laid down that expenses incurred by a political party or supporters would not be deemed to be election expenditure of a candidate belonging to that party. It expressly excepted from its operation decision of the Supreme Court voiding an election before the commencement of the Ordinance. It also excepted similar decisions of High Court provided they had become final or unappealable.
The defeated candidate filed a Writ Petition No. 3761 of 1975 in the High Court to challenge the constitutional validity of the Ordinance of 1974. In view of the finding in the election petition that the total amount of expendiure incurred or authorised by the successful candidate or her election agent together with the amount proved to have been incurred by the political party or the Stale Government in connection with the election did not exceed the prescribed limit, the learned judge though it unnecessary to inquire into the constitutionality of the Ordinance and the Act of 1974 and thus, dismissed the Writ Petition. An appeal was filed to a Division Bench of the High Court from the aforesaid order but by the consent of parties, the points involved in the Writ Petition and in the appeal before the Division Bench of the Allahabad High Court were permitted to be argued in this Court, in the appeal and cross-appeal.
During the pendency of these appeals the Parliament passed the Election Laws (Amendment) Act 40 of 1975 which came into force on August 6, 1975. It substitutes a new S. 8A in the Representation of the People Act, 1951 em- powering the President to decide where a person found guilty of corrupt practice shall be disqualified and if so, for what period. By s. 6 it amends s. 77 of the Act of 1951 making pre-nomination expenses, a matter of irrelevant consideration. It declares that the expenditure incurred by a Government servant in the discharge of his official duty in connection with any arrangement or
facilities and such arrangements or facilities shall not be deemed to be expenditure or assistance incurred or rendered for the furtherance of the election prospects of the candidate concerned. By s. 7 it redefines a candidate to mean a person who has been or claims to have been duly nominated as a candidate in any election. By s. 8 it provides that no symbol allotted to a candidate shall be deemed to be a religious or national symbol and it says to extent relevant that the publication in the official gazette of the resignation of the government servant shall be conclusive proof of the fact of resignation. If the effective date of resignation is stated in the publication, it shall also be a conclusive proof of the fact that the Government servant ceases to be in service with effect from the particular date. The amendments made by ss. 5, 6, 7 and 8 of the Amending Act have retrospective effect and expressly govern election appeals pending in this Court among other proceedings.
By the Constitution (39th Amendment) which came into force on August 10, 1975 two new Articles in the Constitution, namely, Art, 71 and 329A were introduced. This Act puts in the 9th Schedule three Acts, namely, (1) The Representation of the People Act (Act 43) of 1951; (2) The Representation of the People (Amending Act 58) of 1974 and (3) The Election Laws (Amendment Act) 40 of 1975. Article 71 which replaces its precursor empowers the Parliament to pass laws regulating the election of the President and the Vice President including the making of a provision for the decision of disputes relating to these elections. Art, 329A has six clauses out of which the first three deal with the future election to the Parliament of persons holding the office of Prime Minister or Speaker at the time of election or who are appointed to these offices after the election to the Parliament. These clauses aim at depriving the courts of their jurisdiction to try election petitions in which the election of the Prime Minister or the Speaker to the Parliament is challenged. Clause 4 frees the disputed election of the Prime Minister and the Speaker to the Parliament from the restraints of all election laws. It declares such election as valid not- withstanding any judgment and clause 5 ordains that any appeal or cross-appeal pending before the Supreme Court shall be disposed of on the assumption that judgment under appeal is void, that the findings contained in the judgment never had any existence in the eye of law and the election declared void by judgment shall continue to be valid in all respects. Clause 6 provides that Art. 329A shall have precedence over the rest of the Constitution.
This Court held by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharati v. State of Kerala, that the power of amendment under Art. 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
As to what are the basic structures of the Constitution, illustrations have been given by each of these Judges. They include democratic republican form of the Government, Secular character of the Constitution, separation of powers among the legislature, executive and judiciary, the federal character of the Constitution; Rule of Law, Equality of status and of opportunity; Justice, Social, Economic and political; Unity and integrity of the nation and the dignity of the individual secured by the various provisions of the Constitution. There was consensus among these judges that democracy is a basic structure of the Constitution. This Court further was of the unanimous view in Bharati's case that Art. 31-B is not open to challenge. The view of the seven judges in Bharati's case is that Art. 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution.
Placing reliance on the majority view in Bharati's case and on the ground that some of the basic structures of the Constitution have been damaged by the enactment and that they were beyond the amending power under Art. 368 the respondent challenged the constitutional validity of the Constitution (39th Amendment) Act, 1975 and the Election Laws (Amendment) Act 40 of 1975.
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