In conformity with law v. Constituency and . Others

legis- latures have in democratic countries, it has always been recognized to be a matter of first importance tliat elections should be concluded as early as possible according to time S<:hedule and all controversial matters and all disputes arising out of elec- tions should be postponed tlie elections are over, . so till after the election proceedings may not be unduly retarded or protracted. this principle, the sclieme of the election in England is that no significance should be attaclied to anything which does not affect the "election"; and if any irregularities are committed while, it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect the persons . affected · rn of vitiating the "election" and enable 8:.....3 S. C. India/71 this country as well as In conformity with law in 220 SUPREME COURT REPORTS ~ [1952] 1952 N. P: Ponnu· Returning Of/k.r, N, v.kkal ns ~,:; Y 'S. . h e rig t to vote or stan call it in qu~stion, they should be brought up before a special tribunal by means of an election petition and not be made subject of a dispute before any court while the election is in progress. Th as a can i ate or e ection ts not a civil right but is a creature of statute or specjal law and n1ust be imposed by ' is the sole right- of the Legislature to examine and determine all matters relating to the election of its own members, and if the in a special legislature takes tribunal an entirely new and unknown special in accordance with the law which jurisdiction should be exercised creates it. it out of its own hands and vests jurisdiction, Strictly speaking, limitations d"d it. 1 J · · f Co ::a c an J subject to the Where a right or liability is created by a statute which gives the remedy provided by that it, for enforcing a special remedy statute only must be availed of. Wolverhampton New Water 'Works Co. v. Hawkesford [6 C. B. -(N. S.) 336], Neville v. London Express Newspaper Limited ([1919] A. C. 368), Attorney-General of Trinidad and Tobago v. Gordon ·Grant & Co. ([1935] A. C. 532), Secretary of State v. Mask & Co. ( 44 C. W. N. 709), Hurdutrai v. Official Assignee of Calcutta (52 C. W. N. 343), Theberge v. Laudry (1876, 2 App. Cas. 102) referred to. Judgment of the l-Iigh Court of Madras affirmed. CIVIL APPELLATE JuRISDICTioN : Case No. 351 of 1951. Appeal under article 132 of the Constitution from the Judgment and Order of the High Court of and Venkatarama (Subba Rao Judicature at Madras Ayyar JJ.) dated 11th December, 1951, in Writ Peti- tion No. 746 of 1951. The facts of the case and argu- ments of the counsel are set out in detail in the judg- ment. N. Rajagopal Iyengar, for the appellant. R. Ganapathi Iyer, for the 1st respondent. M. C. Setalvad, Attorney-General Joshi, with him) for the Union of India. India ( G. N. K. A. Chiklle, Advocate-General of Madhya Bharat. -(G. N. foshi; with him) for the State of Madhya Bharat.

#1952. January 21. Faz! Ali J. delivered as follows. Patanjali Sastri C. J."Mahajan, Das and Chandrasekhara Aiyar JJ. agreed. .Ali J. Judgment Mukherjea, with Faz! - .. 1952 N. P. Ponnu· v. -Returning Officer, Namakkfd Constituency and . Others. Fazl Ali f. S.C.R. SUPREME COURT REPORTS 221 FAZL Au J.-This is an appeal from an order of the the petition of Madras High Court dismissing .appellant praying for a writ of certiorari. thereupon moved The appellant was one of the persons who had filed nomination papers for election to the Madras Legislative Assembly fro111 the Namal<lkal Constituency in Salem district.' On the 28th November, . 1951, .the Returning Officer for that constituency took ·up ·for scrutiQy nomination papers filed by the various candidates and on the same day he the· appellant's nomina- rejected tion paper on certain groun~s w~ich 1 need' not be set out as they are .not material to the point raised in aweal. . The appellant the High Court under article 226 of the Constitution praying for a writ of certiorari to quash the order of the Re- rejecting his nomination paper and to turning Officer dim:t the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the. ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the pro- visions of article 329(b) of the Constitution. The :appellant's contention in this appeal is that the view .expressed by the High Court is not correct, that jurisdiction of the High Court is not affected by article 329 (b) of the Constitution and that he was entitled to a writ o£ certiorari in the circumstances of the case. the appellant's application on (1) that the concl~sion 'arrived at by Broadly speaking, the arguments on whi~h the judgment of the High Court is assailed are two-fold :- the High Court does not follow from the language of article 329 (b) of the Constitution, whether that article is . read by itself or along with the other articles in Part XV of the Constitution : anrl (2) that the anomalies which will arise if the con- struction put by the High Court on article 329 (b) accepted, are so startling that the courts should in favour of the construction put forward on behalf of · the appellant. 29 222 SUPREME COURT REPORTS [1952J 1952 N. P. Ponnu- Jtuami T. The first argument which turns on the con~truction of article 329(b) requires serious consideration, but I think the secon.d argument can be disposed of briefly It should be stated that what the appel- at the outset. Returning Officer, !ant chooses to call anomaly can be more appropriately Constituency and nature will be has been stated in forceful language by Wallace J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet(') in these words :- ' described as hardship or prejudice and what Namakkal Otlii:rs. Faz/ Ali /. · "I am quite clear that any post-election remedy is wholly inadequate to afford the relief which the peti- tioner seeks, namely, that. this election, now published be stayed, until it can be held with himself as ~ candi- It is no consolation to tell him that he can stand date. It is no remedy to tell him for some other election. that he must let the election go on and then have it set fresh election ordered. aside by petition and have a The fresh election may be under altogether different conditions and may bring forward an array of candidates. The petitioner can only have his proper relief if the proposed election without him stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely neces- sary, unless the relief asked for was to be denie<l him altogether in limine. this kind no the aggrieved party doubt there will be difficulty for to get in his suit in time before the threatened wrong is committed ; but when he has succeeded in so doing, the Court cannot stultify itself by allowing the wrong which it is asked to prevent to be actually consummat- ed while it is engaged in trying the suit." In most cases of - ... These observations however represent only one side of the picture and Judge presented the same learned the other side of the picture in a subsequent case [Desi Chettiar v. Chinttasami Chett1ar( 2 following passage:- )] in "The petitioner is not without his remedy. His remedy lies in an election. petition which we under- argued for him stand he has already put in. It (1) (1924) IL.R. 47 Mad. 585. at 600. (2) (1928) A.I.R. Mad. 1271 at 1272. - S.C.R. SUPREME COURT REPORTS 223 that that remedy which 'merely allows him to have set .aside an election once held is not as efficacious as one which .would enable him to stop the. election alto- gether'; and certain observations at p. 600 of Sar- voihama Rao v. Chairman, Municipal Council, Saida pet(1) are quoted. In the first place, we · do not see how the mere fact that thi: petitioner cannot get election stopped and has his remedy · only after it is· -0ver by an election petition, will itself confer on In the second place, him any right to obtain a writ. these observations were directed the consideration Qf the propriety of an in a civil suit, a injunction matter with which we are not here concerned. And finally it may be observed that remarks were made some years ago when the practice of individuals coming forward in order that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the i inconvenience to the public administration of having elections and the business of "Local Boards held up while individuals prosecute their individual grievances. We understan~ this Union has the election for the elective seats been held up since 31st May because of this petition, the result being that the electors have been unable the Board, to have any representation on since then and .the Board is functioning, if indeed it is function- ing, . with a mere nominated fraction of its total strength; this state of affairs the petitioner pro- poses to have continued until his own personal griev- ;;mce is' satisfied." to · stop elections These obser¥ations which were made in regard to e1ections to Local Boards will apply with greater force to elections to legislat\Jres, because it does not require that in a country with ·a much argument to show Aemocratic constitution in which the legislatures have to play a very important role, 1t will lead to serious consequences if the elections are unduly protracted or obstructed .. To this. aspect of the matter I shall have to .adv~rt later, but , it .is sufficient for the present purpose (1) ( 1924) I.L.R. 47 Mad. 585 at 600. 1952 N. P. Ponnu v. Returning Officer, . · Namakkal Constituency and Others. Fazl Ali /. \ / 1952 N. P. Ponnu v. Returnint Of!icet, Namakkal Constituency and Others. Faz/ Ali/. 224 SUPREME COURT REPORTS [1952} firstly that in England the hardship and to state inconvenience which rnay be suffered by an individual regarded as of sufficient candidate has not been to make provision for weight to induce Parliament immediate relief and the aggrieved candidate has tc> wait_ until after the election to challenge the validity of the rejection of his nomination paper, and secondly, that the question of hardship or inconvenience is after all . only a secondary question, because if the construc- tion put by the High Court on article 329 (b) of Constitution is found to be correct, the fact that such construction will lead to hardship inconvenience becomes irrelevant. Article 329 is the last article in Constitution the heading of which it runs as follows :- Part XV of is "Elections", and· "Notwithstanding anything in this Constitution-- ( a) the validity of any law relating to the delimi- tation of constituencies or the allotment of seats purporting to be made such constituencies made or under article 327 or article 328, shall not be called in question in any court ; (b) no election to either House of Parliament or to the House or either House of the Legislature of a an election State shall be called in question except by petition presented in such manner as may be provided for, by, or under any law made by the appropriate Legislature." authority to such • In construing this article, reference was made by both parties in the course of their arguments other articles in the same Part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides constitution and appointment of an Elecetion Commis- sioner to superintend, direct and the legislatures ; article 325 prohibits discrimination against electors on the ground of religion, race, ca<te or sex ; article 326 provides for adult suffrage ; article 327 empowers Parliament to pass laws making pro- to all matters relating to, or in vision with respect legislatures, subject connection with, elections control elections S.C.R. SUPREME COURT REPORTS 225 respect to the provisions of the Constitution ; and article 328 the State is a complementary article giving power Legislature to all to make provisions with matters relating to, or in connection with, elections to in the the State Legislature. A notable difference language used in articles 327 and 328 -on the one hand, and · article 329 on the other, is that while the first two articles begin with the words "subject to the pro. last article begins visions of this Constitution", with -the words "nothwithstanding anything in Constitution." effect of this difference in language that whereas any law made by Parliament under article 327, or by the State Legislatures' under article 328, cannot exclude _ the jurisdiction of the High Court under article 226 of in regard the Constitution, that jurisdiction is excluded to matters provi<}ed Jor in article 329. It was conceded at the bar 1952 N. P. Ponnu v. Returning Otficn-, Namakkal Constituency and Others. Fnl Ali/. Now, the main controversy in this appeal centres round the meaning of the words "no election shall be called in question except by an election petition'~ in article 329(b ), and the point to be decided is whet~er questioning the action of the Returning Officer in re- jecting a nomination paper can be said to be compre- hended within the words, "no election shall be called in question." The appellant's case is that questioning something which has happened before a candidate is is not the same thing as questioning dedared elected an election, and the arguments advanced on his be- balf in support of this construction were these :- (1) That the word "election" as used article 329(b) means what it normally · and etymologically means, namely, result of polling or ~he final selec- tion of a candidate ; • (2) That election petition can be filed only after polling is over or after a candidate is declared elected, nor- mally called in question by the word final result, bears out the contention in article 329 · "election" can have no other meaning (b) than the result of polling or the final selection of a candidate ; · - and what such petition 226 SUPREME COURT REPORTS [1952] 1952 N. P. Ponnu- swam1 v. (3) That the words "arising out of or in connection with" which are used in article 324(1) and the words "with respect to all matters relating to, or in connec- and 328, tion with" which are used in articles 327 Returning Officer, show that the framers of the Constitution knew that it referring was necessary to use different languages when to and respectively to matters which happen prior after the result of polling, and if had intended to include the rejection of a nomination paper within in article 329 the ambit of the prohibition contained (b) they would have used similar article ; and Namakkal Constituency and Others. Fazl Ali /. language · the following ( 4) That the action of the Returning Officer in re- jecting a nomination paper can be questioned before the High Court under article 226 of . the Constitution reason :-Scrutiny of nomination papers and their rejection .are provided for in section 36 of· the Representation of the People Act, 1951. Parlia- ment has made this provision in exercise of the powers the Constitutio11 c0nferred on it ·by article 327 of which is "subject to the provisions of the Constitution". Therefore, the action of the Returning Officer is subject the High Court to the under article 226. extraordinary jurisdiction of the word These arguments appear . a~ first sight to be quite impressive, but in my opm1on are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for determination meaning to be given article 329 (b). That word has by <:onnection with the process of selection of proper acquired representatives both a wide and a narrow meaning. the narrow final selection of a sense, it is to mean the result of candidate which may embrace poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire candidate being declared a process culminating "election" long usage in democratic institutions, In 1952 N. P. Ponnu v. Returning Officer, Namakkal Constituency and Othe1·s. Faz/ Ali f. :S.C.R. SUPREME COURT ~EPORTS 227 it · be found necessary to me in Part XV of to say, ·elected. In Srinivasalu v. 1;..uppuswami(1), the learned Judges of the Madras High Court after examining the question, expressed· the opinion that : the term "elec- tion" may be taken to· embrace the whole procedure where by an "elected member" is returned, whether or to take a poll. With this ·view, my brother, Mahajan J. expressed his agreement .in Sat Narain v. Hanuman Pramd(2) ; and I also find myself iJ1 agreement with it. It seems that the word "election" has been used ·Constitution in the wide sense, that is to con- .note the entire procedure to be gone through to return .a candidate to the legislature. The use of the expres- in article 324 specifically .. sion "conduct of elections" points to the wide meaning, and that meaning can also ·be read consistently into tile other provisions which •occur in Part XV including article 329 (b). That the ·word "election" ·bears this wide meaning whenever we is borne out · :talk, of elections in a democratic country, the subject by the fact that in most of the books on :and in several cases dealing . with the matter, one of the questions mooted is, when the election begins. The -subject in Ha1sbury's Laws of England in the following passage(3) under the .beading "Commencement of the Election" :- quite concisely is dealt with It "Although the first formal step in every election is the issue of the writ, the election is considered for some · a question _purposes to begin at an earlier date. d fact in each case when an election begins in such a way as to make the parties concerned breaches of election law, .contest is "reasonably imminent". Neither the issue of :the writ nor the publication of the notice of election ·can be looked to as fixing the date when an election begins from this point of view. Nor, again, does ·nomination day· afford any criterion. The election. will usually begin at least earlier than the issue of the writ. 'The question when the election begins . must be care- responsible test being whether ( 1) (1928) A.LR. Mad. 253 at 255. (2) (1945) A.LR. Lah. 85. (3) See page 237 of Halsbury's Laws of England, 2nd edition, Volume 12. -( - '\ l I J ,. - 228 SUPREME COURT REPORTS [1952] 1952 N. P. Ponnu JWami v. Returning Officer, Namak._k._al ( onstituency and Ot,hers. Fazl Ali ]. fully distinguished from that as to when "th~ conduct and management of" an election may be said to begin. Again, the question as a particular person commences to be · a candidate is a question to be con- sidered in each case." to when The discussion in this passage makes it clear the word "election" can be and has been appropriately used with reference to the entire process which consists. steps, some of of several stages and embraces many which may have an important bearing on the result of the process. to any reference considered in question". A The next important question to be 1s shall be what is meant by the words "no election treatise called on elections in England will show that an election pro ceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejec- tion of a nomination paper. The law with which we are concerned is not materially different, and we find that in section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an election to be void the improper rejection of a nomination· paper. there should be The question now arises whether the law of elections two· in this country contemplates that attacks on matters connected with election proceedings, one while they are going on by invoking the extraordi- nary jurisdiction of the High Court under article 226 the· of the Constitution (the ordinary jurisdiction of courts having been expressly excluded), and another after they have been completed by means of an elec-· In my opinion, to affirm such a position tion petition. would be contrary to the scheme of Part XV of the· Constitution and the Representation of the People Act,. which, as I shall point out lateq seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and· should not be brought up at intermediate stage· It seems to me that under the elec-· before any court. rejection of tion law, the only significance which the ' ' ·' S.C.R. SUPREME COURT REPORTS 229 1952 enacted language in question, consists in the fact N. ~~::riu·· v. a nominatiorl: paper . has can be used as a ground to call the election m question. Article 329(b) was apparently prescribe the manner in which and the stage at which this ground, and other. grounds which may be raised Returning Office1', the electio11 to call N~makkal d I think it follows by necessary could be urged. im- Consigu; ncyan provision plication that those grounds cannot be urged in any other manner, at any other stage and before any other court.- If the grounds on which an election can be called .irr question could be raised at an earlier stage and errors,, if any, are rectified, there will be no meaning in enact-' ing a provision like article 329(b) and in setting' up a special tribunal. Any other meaning ascribed words used' in the article would lead anomalies, which the Constitution could not have · contemplated,, one of them being that conflicting views may be expres- sed by the High Court at the pre-polling stage and by the election tribunal, which is independent is brought up body, at the stage when the matter before it. ers. Faz/ dli /,· to be an 1 I think that a brief examination of the scheme of Part XV of the Constitution and the Representation. the construc- of the People Act, 1951, will show correct one. Broadly tion I have suggested speaking, before an election machinery can be brought into operation, there are three requisites which ,requii;-e to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating . to, or ·in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, article 324 with ai1d the second article 329 with the third requisite. The other articles in Part . XV, viz., articles 325 and 326, deal with two matters of principle to which the Consti~u­ importance. They tion-fotmers have attached much judicial 30 " -~ \ I '• .. \.. Returning Officer, the Constitution ·1952 N. P. Ponnu- swatnt v. Namakkal Constituency and Others. Faz/ Ali f. 230 SUPREME COURT REPORTS - (1952] inclusion m, are :-( 1) prohibition against discrimination preparation of, or eligibility electoral rolls, on grounds of religion, race, caste, sex or any of them ; and (2) adult suffrage. Part XV of itself providing the conduct of the entire ground-work for enacting appropriate and setting up suitable machinery for elections. is really a code regard subjects elections, article 327 of they deal with. The Representation of the· People Act, 1951, which was passed by Parliament under Constitution, makes detailed provisions all matters and all stages connected with ·elections to the various legislatures in this country. That Act divicjed into 11 parts, and it is interesting to see wide variety of Part II deals with "the qualifications and disqualifications for membership'', Part III deals with the notification of General Elections, Part IV provides for the adminis- trative machinery for the conduct of Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers, requirements of a valid nomina- tion, scrutiny of nominations, etc., and procedure for polling and counting of votes. Part VI deals with disputes regarding manner of presentation of election petitions, the con- stitution of election tribunals and the trial of ekction corrupt and petitions. Part VII outlines illegal practices which may affect elections, and self-con- is a electqral offenc·es. Obviously, the Act are concerned, tained enactment so elections far as which means that whenever we have to ascertain true position in regard to any matter connected with elections, we have only to look at the Act and the rules . made thereunder. The provisions of the Act which are material sectioru 80, 100, 105 and 170, and the provisions of Chapter I.I of Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted the same language as ·article 329(b), provides that "no election shall be called m question except by an election to the present discussion provide~ for the various in almost elections S.C.R. SUPR~ME COURT REPORTS 231 Section 10) in accordance with petition presented the provisions of this Part". Section 100, as we have already seen, pro- vides for the grounds on which an election may be ,called in question, one of which is the imriroper rejec- tion of a nomination paper. "every order 'of the Tribunal made under this Act shall final and conclusive". to question "no civil court shall have legaiity of any action taken or of any decision given by the Returning Officer or by any other person appointed under this. Act in ·connection with an elec- tion." These are the roam provisions regarding elec- tion matters being judicially dealt with, and it should be noted that there is no provision anywhere effect that anything connected with elections can be · questioned at an intermediate stage. Section 170 provides jurisdiction 1952 N. P. Ponnu v. Returning Officer~ N11mak,k,al Constituency and Others. Fazl Ali/. It is now well-recognized that where a right of lia- bility is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in WoltJerhampton -New Water Works Co. v. Hawkesford( 1 ) in the follow- ing passage :- common implication exclude founded upon statute. One "There are three dasses of cases in which a liability may b~ established is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and , peculiar form of remedy different from the remedy which existed at law; 'there, unless the statute contains words which expressly or co, nimon law by necessary to pursue, remedy, either that or the statutory remedy. The second class of cases is, where the statute gives to sue merely, but provides no particular form ·of remedy~ there,_ the party can only proceed by action . at com- third class, tJiz,, where a· mon law. But liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . . . . . . . . . The remedy provided by the statute must be followed, and it is not the party suing has his election there is a the right (l) 6 C.B. (N.S.) 336, 356. ' 1952 N. P. Ponnu- stvami v. /.?.<turning Officer, Namakkal l~'(Jnstztuency and Other;. .Fa~I Ali f. 232 SUPREME COURT REPORTS [1952] competent to the party t~ pursue the course appli- cable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved v. London Ex by the House of Lords in Neville press Newspaper Limited(') and has been reaffirmed in Attorney-General of Tri by the Privy Council nidad and Tobago v. Gordon Grant & Co.(') and Secretary of State v. Mask & Co.(3 ; and it has also been held to be equally applicable to enforcement of rights : see Hurdutrai v. Official Assignee of Calrntta(•). That being so, I think it will be a inference the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition be presented after the election is over, and there is no remedy provided at any intermediate stage. the provisions ) It was argued that since the Representation of People Act was enacted subject the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under article 226 completely -Constitution. This argument· however shut out by reading the Act along with article 329(b). It will be noticed that the language used in that article and in section 80 of the Act identical, with 1:his difference only that the article is preceded by the this Constitu- words "notwithstanding anything I think that those words are quite apt to ex- tion". clude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress. is almost It may be stated that section 107(1) of the Repre- sentation of People Act, 1949 ( 12 & 13 Geo. 6, c. 68) in England is drafted almost in the same article 329(b). That section runs thus: language "No parliamentary election and no return to Par- liament shall be questioned except by a petition com- plaining of <tll undue election or undue return (herein- after referred to as a parliamentary election petition) '.Presented in accordance with this Part of this Act." . (3) (1940) 44 C.W.N. 709. ( 4) (1948) 52 C.W.N. 343, 349. (1) [1919] A.C. 368. {?) [1935] A.C. 532. ,.. + 1$52 N. P. Ponnu-· v. Returning Officer, Namakkal Constituency and Others: Fflzl Ali /. ':S.C.R.- SUPREME COURT REPORTS It appears that similar language was used 233 . ·earlier statutes, and it is noteworthy that it has never been held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus. On the other hand, it was conceded at the bar that. the question of improper re- jection of a.nomination paper has always been brought tribunal by up in that country before the appropriate means of· an election petition after the conclusion· of the election. It is true that there is no direct dedsfon holding ·that the words used in the' relevant provisions exclude the jurisdiction of the High Court to issue ap- _propriate prerogative writs at an intermediate stage of the election, but the total absence of any such decision can be accounted for only on the view that the provi- ::1ions in question have been generally understood'to have that effect. Our attention .was drawn to rule 13 ot the rules appended to the Ballot Act of 1872 and a similar rule in the Parliamentary Elections Rules of _ 1949, providing that the decision of the Returning Officer <lisallowing an objection to a nomination paper· shall be final, but allowing shall be subject to reversal on a petition questioning the election or re- rules however do not affect the main turn. argument. I think it can be Iegitim_ately · stated that 1f words similar to those used in article 329 (b) have .been consistently treated in England as words apt to exclude the High Court, the same consequence must follow from the words used in article 329(b) of the Constitution. fhe words Constitution" give to that article the same wide and binding effect as a statute passed by a sovereign legis- lature like the English Parliament. jurisdiction of the CQJtrts "notwithstanding including the same anything These It may be pointed out that article 329(b) must be ;µ-tide. . read as complimentary to clause (a) of Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles_327 and 328 relating to the delimitation of constituencies or the allotment of seats such constituencies. . It was conceded before us that article 329(b) ousts the to matters · jurisdiction of the courts with regard t • • 234 SUPREME COURT REPORTS [1952]. 1952 Others. Namak/r..ol N. ~~::.?nu- v. article 226 of the Constitution. Returning Officer, subject to the jurisdiction of ansmg between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only m:itters connected with nominations the High Court under Constituency and Constitution is a code by itself, i.e., rights. "d . l prov1 es specia . tribunal to assuming that High Court, there can be no reason for the Constitution left one small part of the election pro- cess to be made the subject-matter of contest before. the High Courts and thereby upset time-schedule of the elections. The more reasonable view .seems to be that article 329 covers all "electoral matters". the exclusion of all courts includ:ng If Part XV of f h . or t e1r en rcement it creates Fazl Ali /. y a b d The conclusions which I have arrived at may be summed up briefly as follows : - ( 1) Having regard important recognized that elections functions. which the legislatures have to perform in democratic a: to be countries, it has always been matter of first should be importance concluded as early as possible according schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in Eng- land is that no significance should be attached to any- thing which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have effect of vitiating the "election" and enable· the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress. It will be useful at this stage to refer to the decision of the Privy Council in Theberge v. Laudry('). The . (1) (1876) 2 App. Cas. 102. - -( 1952 N. P. Ponnu v. Retur.ning Officer, Namakkal Constituency and nthers. Faz! Ali{. ,. . ... -KC.R. SUPREME COURT REPORTS 235 judgment of petitioner that case having been declared duly elected a member to represent an electoral district in the Legislative Assembly of the Province of Quebc:c, his election was afterwards, on petition, declared null and void by the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt practices, both personally and by his agents. Thereupon, he applied for special leave to appeal to Her Majesty in Council, but it was refused on the ground that the fair con- struction of the Act of 1875 the Act of 1872 which preceded it providing among other things the judgment of the Superior Court "shalf not be sus- intention of ceptible of appeal" was the · legislature to create a tribunal for the purpose of should trying election petitions make its decision final for all purposes, should judgment being not annex to it the reviewed by In delivering the judgment of the Privy Council, Lord Cairns observed as' follows :- in a manner which incident of the Crown under its prerogative. that it was "These the Acts the Legislative Assembly, and vesting two Acts of Parliament, 1872 and 1875, are Acts peculiar in character. They are not Acts constituting or providing for the decision of mere ordinary rights ; are Acts creating an entirely new, and up time unknown, jurisdiction a particular Court . . . . . for the purpose of taking out, with i~ own consent, of that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining status of those who claimed to be members of that kind is Legislative Assembly. A extremely special, and one of the obvious incidents or consequences of rnch a jurisdiction must be that the jurisdiction, by whomsoever it exercised, should be exercised in a way that as possible become conclusive; and enable the consti- tution of the Legislative Assembly to be distinctly and speedily known." · 9-3 S. c. Iuctia/71 jurisdiction of should as 236 SUPREME COURT REPORTS [1952] N. P. Ponnu . v. 0 Namakkal 1952 After dealing with certain other matters, Chancellor proceeded to make observations :- following the Lord further R

#1. Others. eturmng fficer, l Fazl Ali /. I t concerns . l IS • . extreme y pecu iar. "Now, the subject-matter, as has been said, of . l · ~gts at10n Constituency and nghts and prmleges of the electors and of the Legisla- tive Assembly to which they elect members. Those in every colony, rights and privileges have always following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legislative Assembly, in complete independence of the Crown, so they properly exist. And it would be a result far as in consonance with somewhat surprising, and hardly regard the general scheme of the legislation, if, with to rights and privileges of this kind, to be it were found that in the last resort the determination of them the Legislative Assembly, no longer belonged to the Superior Court which Legislative Assembly the Crown belonged advice of the advi~ers 0£ the Crown at home, to be determined without reference either to judgment the Legislative Assembly, or of that Court which in its the Legislative Assembly place." in Council, with longer belonged substituted place, The points which emerge from this decision may be stated as follows :- (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject limitations imposed, by it. examine right of and determine (2) Strictly speaking, it is the sole Legislature to all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a jurisdic- special tribunal an entirely new and unknown . tion, that special jurisdiction should be accordance with the law which creates it. exercised '• y ~ t I I ! S.C.R. SUPREME COURT REPORTS 237 It should be mentioned here that the question as to what the powers of the High Court under articles 226 and 227 and of this Court under article 136 of the Constitution may be, to be is one decided on a proper occasion. that will have It is necessary to refer at thi~ stage to an argument advanced before us on behalf of the appellant which was based on· the language of article 71 (1) of the Constitution. That provision runs thus :- N. P.· Ponnu- v. Returning Officer, Namakkal Constituency and Others. Faz/ Ali j. "All doubts and disputes ari$ng out of or in con- the election of a President or Vice-Pre- nection with sident shall be inquired into Supreme Court whose decision shall be final." and decided by regards matters The argument was as follows. There is a marked the language used in article 71 (1) contrast between and that of article 329 (b). The difference phraseology employed in the two provisions suggests that they could not have been intended to have to be same meaning and scope as brought up before the tribunals they respectively deal with. If the framers of the Constitution, who apparently knew how to express themselves, intended to include within the ambit of article 329 (b) all possible disputes connected with elections including disputes as to nominations, they would have used similar words as are to be found in article 71 ( 1). It is true that it is not necessary to use identical language in every provision, but one can conceive of various alternative ways of expression which would convey more clearly and properly what article 329 (b) is said to convey. It seems it is admitted that the same idea can be expressed in different ways and the same phraseology need not be employed in every pro- loses much of its force. But, vision, however that may be, I think there is a good explana- tion as to why article 329 (b) was drafted as it stands. the argument legislatures, that once to me A reference to the election rules made under the Government of India Acts of 1919 and 1935 will show the subject were al- that the provisions in them on language as artVle 329 (b). The most in the same 238 SUPREME COURT REPORTS [1952] corresponding rule made under the Government of India Act, 1919, was rule 31 of the electoral rules, and it runs as follows : Returning Officer, an election petition presented in accordance with "No election shall be called in question, except by 1952 N. P. Ponnu- v. N~makkal Constituency and Others. Faz/ Ali/. provisions of this Part." • . It should be noted that this rule occurs m Part VII, the heading of which is "The final decision of doubts and disputes as to the validity of an election". These words throw .some light on the function which the elec- the very tion tribunal was to perform, and they are words which appellant argued, ought to have been used to make the meaning clear. learned counsel for The same scheme was followed in the election framed under , the Government of India Act, 1935, in "The Government of India which are contained (Corrupt Practices and Election (Provincial Elections) In 1.>etitions) Order, 1936", dated the 3rd July, 1936. that Order, the rule corresponding to rule 31 under the earlier Act, runs thus :- - "No election shall be called in question except an election petition presented in accordance with provisions of this Part of the Order." This rule is to be found in Part III of the Order, the heading of which is "Decision of doubts and disputes as to validity of an election and disqualification for corrupt practices." The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been iutended to cover the same ground as the to cover provisions in England have been understood If the in that country for so many years. language article 329 (b) historical background, it should not be difficult to see that pro- why the framers of the Constitution framed vision in its present language in certain earlier which had been consistently used test of legislative provisions and which had stood time. form and chose is considered against 1952 N. P. Ponnu· v. lteturning Officer, Namakkal Constituency and Others. Faz/ Ali f. S.C.R. SUPREME COURT REPORTS 239 And now a word as to why negative language was It seems to me that there is used in article 329 (b). difference between article 71 ( 1) and an important article 329 (b). Article 71 (1) had to be in an affir- mative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article. Article 329 (b), on other hand, was primarily intended to exclude or ousl the jurisdiction of all courts to electoral matters and to lay down the only mode in which an election could be challenged. The negative form was it is therefore more appropriate, and, the pre- not surprising that it was decided to follow existing pattern in which also language the negative had been adopted. that being so, regard Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words:- "It was next contended that if nomination is part. of election, a dispute as to the validity of nomination is a dispute relating to election and that can be. called the provisions of in question only in accordance with article 329 (b) by the presentation of an election peti- to the appropriate Tribunal and that the Return- ing Officer would have no jurisdiction to decide matter, and it was further argued that section 36 of Act XL.III of. 1951 would be utlra vires inasmuch as it confers on the Returning Officer a jurisdiction which article 329 (b) confers on a Tribunal to be appointed in accordance with the article." This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under sec- tion 36 of the Representation of the People Act, 1951, to scrutinize: it is the duty of the Returning Officer the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination. It is clear that is discharged properly, any number unless this duty of candidates may stand for election without comply- ing with the provisions of the Act and a great deal of 1952 N. P. Ponnu- v. Namakkal Othtrs. Faz/ Ali/. Rettirning Of!i«r, the election process. Constituency and · anything done towards the completion of ' , 240 SUPREME COURT REPORTS [1952] In . discharging confusion may ensue. statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in It is one of the essential duties to be performed before the election can be completed, and the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argu- ment lies in treating a single step taken in furtherance of an election as equivalent .to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression-"no election called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evi- the argument has no bearing on this method dently, this appeal, of approach to the question posed which appears to me to be the only correct method. We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Om- improper stitution entertain petitions !PY rejection of nomination papers. This view is opinion wrrect and must be affirmed. The appeal must therefore fail and is dismissed. In view of the raised m nature and importance of the points appeal, there should be no order to costs. regarding p ATANJ ALI SASTRI c. J ,_:I agree. MEim CHAND MAHAJAN J.-1 agree. MuKHERJEA f.-1 agree. DAs J.-1 agree. CHANDllASEKHARA AIYAR r.-I agree. Appeal dismitsed. Agent for the appellant : S. Subt<ahmanyam. Agent for the 1st respondent : P. A. Mehta. Agent for the Union of India and the State of Madhya Bharat : P. A. Mehta. GIPN-Si-3S.C India/71-6-10·72-7DO