SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN

Judgment

1 . Parker's conduct of Parliamentary Elections' 19'70 Edn. p. 52-53; In· re. Youthal I O'M & H 295; In re. Bodin 50'M N 280; In re. Norwic/1 54 L T I • / r \ • 1 1 • ...- '"'\ :... ·~ •• SMT. INDIRA GANDHI V. RAJ NARAIN 359 '627; Siatute 17 and 18 Victoria, Ch. CII (1853-54); Statute 21 and 22 Viet. A Ch. LXXXVU (1858 l Statute 46 and 47 Viet. LI !882. Holding out as a candidate~Meaning of. The 1951 Act uses the expression "candidate" in relation to several offence for the purpose of fixing liability with reference to a person being a candidate, if no time be fixed with regard to a person being a candidate it can be said that from the moment a person is elected he can be said to hold himself out as a candidate for the next election. The definition of the English Act cannot be of any aid to the construction of the 1951 Act. [441A-BJ "Official dutv" will he duty in law. Official duty will be a duty in law. Official duty will be duty under administrative directions of the Executive. Official duty will be for security law and order and matters in aid of public purpase. These dnties will be in connection with election. Official. duties must have reasonable connection bet ween the Act and the discharge of duty. [441E-F] B c MataioR Dob~y v. fl. C. Bhari, [19551 2 S.C.R. 925 (applied). "There is no vice of delegation in the statutes." There is no vice of delegation in the statutes. complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting by a person or body of persons of the exercise of power residing in that person or body of D persons to another person or body of persons with complete power of revoca- tion or' amendment remaining in the grantor or dele,sator. Delegation often in volves the granting of discretionary authority to another, but such authority is purely derivative. The< ultimate power always remains in the delegator and is never renounced. [ 442A-C] "Delegation" is not Gwalior Rayon Silk Manufacturin.fi' (Weaving) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Ors. [19741 4 S.C.R. 98 & 116. (followed). The contentions that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structures 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 frame work. Secondly the majority view in Kesavan- anda Blzarati's case is that the 39th Amendment which put the two statutes in the Ninth Schedule and Art. 31-B is not open to challenge on the ground of either damage to destruction of basic features., basic structures or basic frame- work or on the ground of violation of fundamental rights. [442H, 443A] Kesavananda Bliarati's case, [1973] Supp. S.C.R. 1 (applied). E F Cow and Calf symbol validity allotted by the Election Commissioner under the Election Rule is not a religious symbol within the mealling of s.123(3) and the usage of the symbol will not co1Zslitute also a corrupt practice." It is impossible to hold that because one party ha9 not been given the symbol of "cow, calf and milk maid", therefore, the symbol of "cow, calf and milk maid" becomes a religious symbol. No evidence was let to prove that "cow and G calf" is a religious symbol. [443G-HJ Per Khanna,. l. "Propriety of the impugned constitutional amendment is not_ the concern of the Court. This Court is n9t ~oncerned _with the wisdom behind or the propriety of the impugned constitutional amendment. These are matters essentially those who are vested with the authority to make the constitutional amendments All that this Court is concerned with is the constitutional validity of the impugn: ed amendment. [457A-B] for H 360 SUPREME COURT REPORTS [l976j 2 S.C.R. "Co11stit11tional validity of tlze Acts cannot be assailed on the ground tlzat some of the members of Parliament where prevented because al tlzeir deten tion from attending and participating in the prodecdings of tlze House of Parlia mem. The contention that the sitttings of the two Houses of Parliament in which, the impugned Acts were passed essentially relates to the validity of the pro ceedings of the two Houses, 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 discussion9 in these Houses. Art. 122(1) and Art. 100 would show that the framers of the Constitution were anxious to ensure that the procedural urcgularities and other grounds like those mentioned in clause (2) of Art. 100 should not vitiate the validity of proceedings of Parliament and that it would not be permissible' to call in question those proceedings on such grounds. [458D E, 459B-C] May's "Parliamentary Practice" 18th Edn. 100; K. Anc•ulan Nambiar & A11r. v.' The Chief Secreta1'v Govemment of Madras and Ors. [1966] 2 S.C.R. 406 {relied on). Speo.tal Refel"ence No. 1 of 1964, [1965] 1 S.C.R. p. 413; (Obiter) not applicable. \ I I ~ It is a right of each House of Parliament to be the sole judge of the It would, therefore. follow that the courts lawfulness of its own proceedings. cannot go into the lawfulness of the proceedings of the House of Parliament. [460F·Gl A B c D Bradla11gh v. Gossett 12 Q.B.D. 271 (1883-84) (quoted with approval). The act of detaining a person is normally that of an outside agency and not that of the House of\ Parliament. the act of an outside agency which might ultimately turn out to be not leMl could affect the validity of the proceedings of the House of Parliament or could prevent that House from assembling and fnnctioning. [460Gl It would certainly look anomalous, E "Gazette notification raises an assumptio'n tlzat tlze Acts were duly passed". Jn the face of the pt1blication in the gazette of the Election Laws (Amend ment Act 40) 1975 and the Constitution (Thirty-ninth Amendment Act) 1975 this court must assume that those two Acts were duly passed. [461Al Marshall Field & Co. v. Jdh11 M. Clark 14 U.S. 649: Oscar Leser v. Merder F Garnett 66 L. Ed. 505 (di~cussed). The constitutional validity of the Constitution Amendment Act and the 1975 Act amendini: the Representation or the People Act cannot be assailed on the ground that some of the members of Parliament were prevented because of their detention from attending and participating in the proceedings of the House of Parliament. [461Fl · G "Validity of preventive detention of Members of Par/icvnent cannot be do/laterally raised in proceedings wherein the court is concemed with t/ie l'afi dity of constitution a11u!nd111ent.1' • Question as: to whether a member of Parliament has been validly detained under a law relating to !lppropriately gone p~·evention detention can be into in proceedings for a y;nt o~ habeas corpus. Suc1!- question can!lot be colla terally raised in procee<lmgs ltke the present wherem the court 1s concerned with the validity of a Constitution Amendment Aot and an Act to amend the Representation of the People Act. [458B·Cl H It is plain that it would not be poosible. ~or the court in. such co!lateraT proceedings to record a findinu about the. valld1ty of the. d;tent10n of mem~rs because the full material having a beanng on the val1d1ty of the detention J • SMT. INDIRA GANDHI V. RAJ NARAIN 361 would normally be, apart from the authority passing the order for detention, It ·Only with the person ordered to be detained or his friends and relatives. would plainly be hazardous to record a finding without such material and a .court of law, should decline to record such a finding in collateral proceedings. Till such time as a finding is recorded in appropriate proceedings, about the validity of the detention pf the members of Parliament the court would have to proceed upon the assumption that the detention has not been shown to be invalid. [459E-G] [Obiter : Jn deciding a case .before it. the co_urt should resist the atte~pt <if a party to induce it to decide a matl'Cr which though canvassed durmg arguments is only incide.ntal and collateral and can appropriately be dealt with in separate proceedings.] [458C-Dl "Clause 4 of Art. 329A is unconstitutional as it violates the principle of free tN1d fair elections an essential postulate o'j democracy, which in its tum is a part of the !Jc.<Sic structure of the Constitution." Clause ( 4) of Art. 329A consists of four parts, viz; (i) No law made by Parliament before the commencement of the Con~titution (Thirty-ninth Amend· men!) Act, 1975 insofar as it relates to the election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Cl. ( 1) to (ii) and such election could be declared to be either House of Parliament. void or has, before such commencement, been declared to be void under any (iii) and notwithstanding an qrder made by any court before such such law. commencement declaring such election to be void, such election shall continue to be valid in all respects; and (iv) any such order and any finding on whicbi such order is based shall be and shall he deemed always to have been void and of no effect. [461G-H, 462A-CJ As far as part (i), it relates to a matter which can be the subject of an ordinary legislation or a constitutional amendment. A Jaw in the above terms can validly be made by a legislature as well as by constituent authority. The fact that the above Jaw would have retrospective effect would not detract tfrom the competence of legislature of competent authority to make such a law. It is well-settled that it is permissible for a legislature to make a law with retros pective effect. The power of a legislature to make a law with retrospective effect is not curtailed or circumscribed by the fact that the subject matter of If a legislature such retrospective law is a matter relating to an election dispute. can pass legislation in respect of matters relating to an election dispute with retrospective effect, the constituent autoority. which is a kind of super Jegisla· ture would a fortiori be entitled to do so. (4620-G] State of Orissm v. Bhupendra Kumar Bose, [1962] Supp. 2 SCR 38Q; Kanta Kathuria v. Manak Chand Surana, (1970](2) SCR 835, applied. Part (ii) of cl. ( 4) spells out the consequence which flows from part ( i) or the clause. If the previous law insofar as it relates to the election petitions and matters connected therewith was not to apply to the election of the Prime Minister and Speaker, it wonld necessarily follow that election of the appellant who was the P.rime Minister would not be deemed to be void or ever to have become void on the ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law. [462G-H] The same, to some extent, appears to be true of part (iv) of Cl.(4). the previous law insofar as it relates to the election petitions and matters con nected therewith was not to apply to the election of the appellant, the High Court shall be deemed to have had no jurisdiction to decide the election peti~ ti<:>n challenging the election of the appellant. The resultant effect of the amendment thus was that the order by which the election of the appellant was declared to be void and the finding on which such order was based were rnndered to be void and of no effect.· [463A-C] If. A B c D E- F G H A declaration that an order made by a court of Jaw is void is normally part of the judicial function and is not a legislative function. AlthOugh \ • "' ' l J 362 SUPREME COURT REPORTS [1976] 2 s.c.R. is, in the Constitution of India, na rigid separation af powers, by and large, the spheres of judicial functian and legislative functions have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. A legislature while it is entitled to change with retrospective effect the law which formed the basis of judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding. [ 463D-E] Shri Prithvi Cotto11 Mills Ltd. & A11r. v. Broach Borough Municipality & Ors., [1970](1) SCR 388 @ 392, Janpada Sc.b/ia, Ch/1indwara etc. v. The Central Provinces Syndicate Ltd. & Anr. etc. [1970] (3) SCR 745 @751; Municipal Cdrporat1'011 of the City of Alunedabtul etc. v. New Shorrock Spg. & Wvg. Co. Ltd. etc. [1971] (1) SCR 287; State of Tamil Nadu & Anr. v. M. Rayappa Gounder, AIR 1971 SC 231, (followed). American Jurisprudence 2nd Edn. Vol. 46 p. 318-319 and Douglas Liyange v. The Quee11, [1967] AC 259 (discussed). By Part (iii) of Cl.(4), it is declared that the election of the appellant shall continue to be valid in all respects. Such a declaration would not follow from part (i) or part (ii) or part (iv) of the clause. The result is that so far as the dispute relating to the election of the appellant is concerned, a legal vacuum came into existence. fill that vacuum by prescribing a law which was to govern the dispute arising out of the petition filed by the respondent to appellant. The constituent authority, however, did not do so and straightaway proceededi to declare the election of the appellant to be valid. There is nothing ip clause ( 4) to indicate that the constituent authority applied any law in de claring the election of the appellant to be valid and if so what wn.s that Jaw. It was open to the Constituent Authority challe_nge the election of [465H, 466F-Gl "Democracy, which is a basic stmcture of t/1e Constitution and its postulates." The power of amendment of the Constitution in A.rt. 368 does not Permit altering the basic structnre of the Constitution. Democratic set up is part of the . basic structure of the Constitution. Democracy i:ostulates that there should be pJ:riodic elections so that people may be in a position to select the old re• presentatives or if they so choose, to change the representatives and elect in their place other representative. Democracy fnrther contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion. the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Disputes do arise and to resolve the dis putes, the different democratic countries of the world have made provisions pres cribing the law and the forum for resolving of those disputes. [4670-H] Free and fair elections require that Kesavananda Bliarati's case [1973] Supp. SCR 1, (applied). U. K. Representation of the People Act, 1949: U.S. Constit111ion, Art. Section 5: Au.<tralian Constitution, s. 47; Japanese Constitution, Art. 55; Iceland Constitution, Art. 46; Norwaigia11 Constitution Art. 64; French Constitution, Art. 59; German Federal Republic Co11stitutio11 Art. 41; Italian Cdnstiflltion Art. 66; Tur/dsh Constitution Art . . 75 and Malaysian Constitution, Art. 53, referred to. "Rules ofi Electoral Morality affected' by cl. (4) of Art. 329A." Election laws lay down a code of conduct in election matters and prescribe what may be called. rules of electoral morality. The object of a provision for resolving election disputes in the Election Laws i~ to enforce rules of eJectoral morality and to punish deviance fr?i;n the prescribed code of con9uct Ill elec tion matters. above code of conduct and rules of electoral morality. Nothing would bring the code of conduct into greater contempt and make a greater mockery of than the absence of a provision to punish its 'f!le position would become all the more glaring that even though a prov1s1on exists on the statut.e book for punishing violation of the code of conduct in election matters a parti- But for such prov1S1on, there would be no sanct10n fo,r vioiati<?~· I " > ' .. A' B c D E F G H I SMT. INDIRA GANDHI V. RAJ NARAIN 363 cu!ar election is made immune and granted exemption from the operation of such a provision. [ 469A-C] A The vice of clause (4) of Art. 329A is not merely that it makes the pre vious law contained in the R.P. Act as amended by Acts 58 of 1974 and 40 of 19·75 inapplicable to the challenge to the election of the appellant, it also makes n() other election Jaw applicable for resolving that dispute. The further vice from wl,.ich the said clause suffers is that it not merely divests !]le previous authority. namely the High Court of its jurisdiction to decide the dispute relat- ing to the election of the appellant, it confers no jurisdiction on some other authority to decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon the grounds advanced to challenge the election of the appellant, the constituent authority has declared the election of the appel- .._.; lant to be valid. (4690-B] · B 7 To confer an absolute validity upon the election ot one particular candidate and to prescribe that· the validity of that election shalJ not be questioned before any forum or under any law would necessarily have the effect cA sayin11. howsoever gross may be the improprieties which might have vitiated that election: howsoever flagrant may be the malpractices which might have been committed on behalf of the returned candidate during the course of election and howsoever foul and violative of the principles of free and fair elections may be the means which might haw been employed fm securing success in that election, the said election would be none-the-Jess valid and it would not be permissible to com- plain of these impropdeties, malpractices and unfair means before any forum or under any Jaw with a view to assail the validity of that election. Not much argument is needed to show that any provision which brings about that result is subv~ive of the principle of free and fair election in a democracy. fact that the candidate concerned is the Prime Minister of the country or the Speaker of the Lower House of Parliament would, if anything, add force to the above conclusion because both these offices re_Present the acme of the democratic process in a country. That ill fact the elections of the incumbents of the two offices were not vitiated by any impropriety, malpractice or unfair means not relevant or germane to the question with which the Court is concerned, [469F-H, 470AJ namely, as to what is the effect of clause (4) of article 329A. that C The D The vice of declaration contained in part (iii) of clanse (4) regarding the validity of the election of the appellant is aggravated by the fact that such a declaration is made after the High Court which was then seized of juriSdiction had found substance in some of the grounds advanced by the respondent and had consequently declared the election of the appellant to be void. To put a stamp of validity on the election of a candidate by saying that the chalJenge to such an election would not be governed by any election law and that the said election in any case would be valid and immune from any challenge runs counter to accepted nonm of free and fair elections in all democratic countries. [470B-CJ Marabary v. Madison 1 Cr. 137, 163 (1803) United States v. Lee 106 U.S. l96, 220 (quoted with approval). ' Rule of Construction o1 widely worded provisions in the Statute." If a clause of a Constitution or statutory provision is widely worded width of its ambit cannot be circumscribed by taking into account the facts of an individual case to which it applies. [470F] Although the provisions of constitutional amendment should be construed in a fair and liberal spirit, such liberal spirit should not be carried by the court to the extent of discovering the application of dormant and latent law in the declarati'on of the validity of an election even though there is not even a remote indication of such law in the impugned provi~ion. (471 BJ "Rule of law, requirements of" R.ule of Jaw postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable E F G H 364 SUPREME COURT REPORTS fl 97 6) 2 S.C.R. \ ... A If a decision is taken without any and the ctt1zen should know where he is. principle or any rule, it is not predictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. [471il-C] B c D Clause (4) of Art. 319A strikes at the basis of free and fair Eleclions. The effect of impugned clause ( 4) is to take away both the right and the Such extinguishment of the remedy to challenge the election of the appellant. right and remedy to challenite the validity of the election, is incompatible with Free and fair elections necessarily the process of free and fair elections. postulate that if the, Sl!CCCSS of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void. To extin guish the right and the remedy to challenge the validity of an election would' necessarily be tantamount to laying down that even if the election of a candidate is vitiated by the fact that it was secured by flagrant violation of the principle of free and fafr election, the same would still enjoy immunity from Cl:iallenge and would be none-the-less valid. Claiise ( 4) of Art. 32<}A can, therefOre, be held to strike at the basis of free and fair elections. [417C-E] Bryce : American Commonwealth 912 Edn. 47-50; United States Code 1970 Ed. Sections 5, 6, 15 and Roscse Pound, Jurisprudence Vol. III 106. Clause (4) of Art. 329A of the Constitution is to be struck down on ground that it violates the principle of free and fair elections, which is essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution, inasmuch as it abolishes the forum without provi ding 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 relating to the validity of the election of the appellant shall not be governed by any ele9(ion Jaw and that the validity of the said election shall be absolute and not liable to be assailed and (2) it extinguishes both the rigl:!t consequently he and the remedy 'to challenge the validity of the aforesaid election. [4740-E] E [His Lordship did not express any opinion about the validity of the other cal uses of Art. 329A, since Cl. ( 4) alone was relevantl [461G] "From when held out as candidate" has becdme academic in view of the change in law. The question as to when the appellant held herself out as a candidate from the Rae Bareli Constituency has become purely academic in view of he change of the definition of the word "candidate" as given in clause (b) of s.79 of the Representation of the People Act 40 of 1975. [475C-D] F G "Candidate ddes not include "returned candidate" ins. lOO(l){b)." Candidate in Clause (7) of Sec. 123 of the Representation of the People Act would mean a person who has or who claims to have been duly nominated au a candidate at the election. The word "candidate" has not been used merely to identify the person who is duly nominated as a candidate at an election. The word "candidate" would not include also a person who, after the commission of corrupt practice specified in cl.(7) is subse14uent!y nominated as a candidate. The amended definition shows that unless context otherwise requires candidate means a person who has been or dailllll to have been duly nominated as a candi date at an election. There is nothing to indicate that the word candidate in cl.(7) of s.123 has been used merely tn 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 provisiom of the statutes to be cumbersome. When 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 get~ substituted. Representation of the People Act in the sense in which it has been defined as Reading the word "candidate" i'n s.123(7) of SMT. INDIRA GANDIII V. :RAJ NARAIN 365 a r~sult of. the amendment made by Act 40 of 1975, tl?.e only reasonable in ference is that the person referred to as a ca:i.diJate in that clause should be a person who bas been or claims tQ have been duly nominated as a candidate at 1n1 election and not one \vho is yet to be nominated. [476F-ll, 477A-B] · · The contention that, if while dealing: with corrupt practice committed by a .candidate before he became a returned candidate in the ccintext of s-.100\ 1) (b) it is permissible to hold the \\'ords ureturned candidate'' are intended to identify the person who subsequently becomes a returned candidate, the !ame criterion should apply when construing the \\'Ord .. candidate'' in s. 123 of the Re pr~entation of the People Act. is devoid of force. The definition of the words returned candidate and candidate given in s. 79 of the Representation of the People Act are preceded by the words unless the context otherwise requires.'' . The connotation of the above words is that normally it is the definition given in the section w,hich should be applied and given effect to. This normal rule may h0\1.'ever be departed from if there be· something in the context to show that the definition should not be applied. So far .as clause (b) of s. 100 (1) is conce;:,.ed, the context plainly requires that the corrupt practice referred to in· that cl<u.1se should have been committed by the candidate before 00 became a returned candidate, or by his agent or by any other person with his consent ~r that of his election agent. The compulsion arising from the context which is there in ct. (b) of s. 100(1) of the Representation of the People Act is singularly absent 'in s. 123(7} of the Representation of the People Act. There is nothing in the context of the later provision which requires that the full effect to the new <lefinition of the word ''candidate" should not be given effect to. [474E·Hl llahhury's Laws of England 3rd Edn. Vol. 14, 222-223 (not applicable). Official duty includes statutory and all those to be carried out as per o.dminis tratl'i·e instructions. There is_ nothing in the proviSo to s.123(7) as inserted by the Election Law Amendment (Act 40) of 1975 to confine the words "official duty" to duty impos ed by the statute. Official duty would include not merely duties imposed by statutes but also those /\\·hich have to be carried out in pursuance of administra tive in<;tructions. [480A-Bl A c D E "Co1v and. Calf is not a religious or a national synibor·. In view of the proviso to Cl. 3 of s. 123 inserted by Act 40 of 1975, the symbol of cow and calf shall not be deemed to be a religious symbol or. a F natio:1al symbol for the purposes of s. 123(3) of the R"Cpresentation of the People Act. [480H, 481Al _ . "Retorspective -legfs{atioli. is· intra vires the [)OY.'ers of the legislature". A legislature has, except in a matter for ,,.,hich there is prohibition tile one contained in Art. 20(1) of the constitution, the power to make laws which are prospective in operation as well as laws which have retrospective operation. There is no limitation on the power of the legislature in this respect. Apart f!om the field in which there is a constitutional prohibition fer giving retro~c­ uve effect has now become a part of norm.al legislative process. Election laws are a part of the normal legislative process and what is permitted in the matter or .ordinary le&islation would also be permissible in the matter of. legblation re lahn~ to elections unless there be rome provision in the constitution which forbids such a course. [481C-D G ' . 482A-B] 'The matter is no tonger "res jntegra". . ' Statt of Orissa v. Bhupendra Kunwr Bose [1962) Supp. (2) SCR 380; "Kanta Kathurl, v. Manak Chand Surana [1970] (2) SCR 835 (affirmed). ;lbeyusekera v. Jaya~Uake [1932) AC 26Q (discussed). G H • • • ., ,• -J A B c D E 366 SUPREME COURT REPORTS [1976) 2 S.C,R. The provisions of Act 40 of 1975 are general in terms and would apply to all election disputes which may be, pending either in the High Court or in appeal before the Supreme Court or which may arise in future. It is no doubt true that the retrospective operation of amending Act has tlie effect of placing one of the parties to the dispute in a more advantageous position compared to others; but tliat is inevitable in most of the amendments with retrospective operation. The contention that the amendment in laws was void because it gave advantage to a party is to be rejected. [486C-DJ Harbhajan Singh v. Mohan Singh and Ors. [1974] 2 SCC 364 (discussed and applied). Kanta Kathurio v. Manak Chand Surana [1970] (2) SCR 835 (affirmed). Whenever a legislature makes a law or amends a law it has to inoicatc the time from which it would come into effect. This is essentially a matter for the legislature and the court cannot substitute its own opinion, for that of the legis lature. The fact that the change in law is made applicable to pending cases and the classification treats the decided cases as belonging to one category and pending cases as belonging to another category is not offensive to Art. 14. Indeed the question of propriety is a matter which is entirely for the legislature to think of and decide. It cannot aJfect the validity of Jaw. [486F-H] Anam Mills v. State of Gujarat [1975] 2 SCC 175 (followed). In case the provisions of the amended law are abused, this court would not be helple~s in the matter. The proper course in such an event would be to strike down the action taken under the amended law and not the law itself. [4870] Change in tlze definition of tlze word does not impinge upon the process of "free and fair elections". As a result of the change in the definition of candidate, the legislature has fixed a definite date viz. that of nomination instead of the earlier time which had an element of indefiniteness and uncertainty about it for finding as to..mhcn a person became a candidate. Certainty is an essential desideratum in law and any amendment of law to achieve that object is manifestly a permissible piece of legislation. The choice of date was a matter for the legislature to decide and the court cannot substitute its own opinion for that of the legislature. In this respect. more so when whatever be the choice of date, has aspects of both pros and cons. [4888-C] F Union of India v. M/s. Parmaswaran Match Works AIR 1974 SC 2349, · followed. Laying down rule of conclusive proof is not assumption of judicial power by Le1dslaturr.. G H Laying down a rule of conclusive presumption in a statute with a view to remove uncertainty with regard to the date of taking effect of appointment or resignation of a Government employee cannot be characterised as an assump·· tion of judicial power by the legislature. [488G] Nolle of the three objects o~ the change effected by Act 40 of 1975 has any taint of 1111constitutionality. One of the objects of the changes effected by Act 40 of 1975 is to remove the uncertainty and set at rest the controversy as to what would be the precise date of a person in the service of the Central Government ceasing to be in such service in case he tenders his resigqation. Another object of the change effected by the Act of 1975 is that a candidate who is bound in view of para 8 of the Elections Symbols (Reservation and Allotment) Order, 1968 to use the party symbol allotted by the Election Commission and who cannot use any other symbol shall not suffer and be guilty of corrupt practice under s. 123 (3) of the Representation of the People Act because of the use of that symbol. The third t \ l

SMT. INDIRA GANDHI V. RAJ NARAIN 367 object of the change effected by the Act 40 of 1976 is that a candidate should not suffer or be held guilty of corrupt practice because of any act done by any person in the service of the Government and belonging to any of the classes mentioned in s. 123(7) of the Representa.tion of the People Act ii~ the dis charge of his official duty. Non~ of the three objects has any tamt of un constitutionality and that the impugned provisions do not infringe upon the prin ciple of free and fair election. [ 488E, H, 489C-01 The act in the discharge or purported disch11rge of official duty of the Government employees referred to in the newly added proviso to section 123(7) of RP Act would have to be of a kind which is germane to their official duties. Wha.t would be permissible under the above provision would be that which conceived to be done in public interest and not something conceived to be done In spite of some difficulty which may in the personal interest of a candidate. arise in borderline cases, this distinction must be borne in mind. If, however, because of doing something conceived in public interest, e.g., as in the present case the security arrangement for the person holding the office of the Prime Minister, some advantage may also possibly accrue to a candidate, it will have to be regarded as incidental and would not detract from action taken under lhe above provision being in publ,ic interest. As against that, any action taken with a view to further the personal interest of a candidate should not be allow- ed to be camouflaged as an action taken in public interest. Care must be taken to ensure that public interest is not allowed to degenerate into a cloak for fur theranc" of the personal interests of a candidate in an election. The disch11rge or purported discharge of official duty must necessarily have public interest and not the personal interest of a candidate as its basis. The courts while dealinl? with the newly a.dded proviso to section 123(7) should construe it, if reason- ably possible, in such a manner as would sustain the validity of that proviso. In case there is abuse of the above provision, the proper course, would be to strike down the action taken under the proviso and not the proviso itself. [4890-H, 490A-Bl [His Lordship felt not necessary to deal with the argument that the theory of basic structure of the Constitution operates upon an amendment or the Cons titution under Art. 368 only, but it does not hold good when Parliament enacts a statute in exercise of powers under Art. 245 of the Constitution in view of his findings that the provisions of Act 40 of 1975 have not been shown to in- fringe upon the process of free. and fair election]. [490E-G] "Lexa! evidence is necessary to show the extent of user of each vehicle in the elections'. It is n.o doubt true that by using a vehicle for the furtherance of the pros- pects of candidates in more tb~n one constitnency one should not be allowed !O ci~cumvent the salutary provisions of the Representation of the People Act such circumvention it is essential that evidence tn this respect. To prevent should be led to show as to what was the extent of the mer of the vehicle the constituency. [4940-E] Hans Raj v. Pt. Hari Ram and Ors., 40 E.L.R. 125 (applied). B c E · v " As the election expenses of the· appellant have not been shown to exceed the prescribed limit of Rs. 35,000/- the question of invoking a.nd going into validity of Act 58 of 1974 doe~ not arise. [497 A-BJ [His Lordship thought it unnecessary to express an opinion abou.t the view of Ka11wc•r Lal v. Amar Nath Chawla, AIR 1975 SC 308]. [497B] "Whether Fundamental Rights are not a part of the basic structure of the Constitution-O;bservations of Justice Khanna in Bharati's case clarified." (1) What has been laid down by His Lordships in Bharati's case [1973] Supp. SCR 1 is (i) that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contafoed in Part Ill of the Constitution. The constitutional amend ment under Art. 368 does not constitute "law" as mentioned in Art. 13. There H A B ·E G 1I SUPRE,\fE COURT REPORTS [1976] 2 5.C,R. was no Iimita.tion on the power o~ Parliament to amend the provisions of Part III of the ConstltutIO'! so a~ to. abndge or take away the fundamental rights. As r~gards the SCOPe. of the power of amendment under Art. 368, and the connota ti_on _of th<:: word "amendment" it is clear from the Bharati's case that no dis t!nct1on was ma_de between a provision relating to fundamental rights and provi s10ns _dealmg with matters other than funda:mental rights. The limitation inhe n~nt m the word "amendment" according to which it is not permissible by ~niendment of the Constitution to change the basic structure of the Constitu t10n was. to operate equally on articles pertaining to fundamental rights as on o_the! articles not pertaining to these rights. The secular cha-meter of the Cons tltut10n and .the rights guaranteed by Art. 15 pertain to the basic structure. Right to property 1s not a part of the basic structure of the Constitution. To contend that according to. Khanna J ., in Bharati's case that fundamental rights are not a part of the basic structure of the Constitution is not correct. [4970-E, 4980-H, 499A, E-F) Go/aknath'.s case [1967] 2 SCR 762, referred to; Bharati's case [1973] Supp. S.C.R. 1, clanfied. It hag been said that great cases like hard cases make bad Jaw. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming i~terest, which appeals to the feelings and distorts the judgment. These imme diate . interests exercise a kind of hydraulic pressure. It, therefore, became essential to rid the case of all the embellishments resultiing from the political overt?ne~ and to bring it to a level which is strictly judicial, so that the various constlturnonal and legal aspects of the matter may be examined in a dispassion- ate atmosphere. [499G-H, 500AJ , I National Securities Co. v. U.S .. 193 US 197 referred to. Per Mathew I. "Concept of democracy and its requisite" The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by tbe method of election. And before an election machinery can be brought into operation, be attended to namely (1) there s!iould be a set of laws and rules making provisions with respect to all matters relatin,g to, or in connection, elections and it should be decided as to how these laws and rules are to be made (2) there should be an execut<ive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites Art. 324 with second and Art. 329 with the third requisite. [5040-F] N. P. Ponnuswami v. Returning Officer Namnakal Constituency & Ors. requisites which require [1952] SCR 218 @ 219 (referred to). As per Art. 329(b), a power must be lodged somewher~ to judge the validity of the election, for otherwise there would be no certamiy as to who were legitimately chosen as members, and any intruder or usurper might cl~m a seat and thus trample upon the privileges and liberties of the people. In which ever au1'hority the power is lodged, the nature of the func!ion i~ such that. !t It cannot be resc:lve<l on. cc;ms.1d~rah~ms of polill-· requires a judicial apprc:ach. cal expediency. In whichever body or authority the 1unsd1ction JS rested, the exercise of the jurisdiction must be judicial in cliaracter. [505C-D, 506B] Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. [1965] (I) SCR 267 (relied on). Erskine May's Parliamentary Practice ]8th Edn. (19•71) 29 @ 31 and Bcwry v. U.S. Ex. Rel. Cu1aningham 73 L. ed. 367 (referred to). • Vesting power~ to ad]'udicate election disputes in each ?f the Ho'!se of Parliament by the Constitution would have bee!! on the basis ?f do_ctrme of political question and this doctrine has no hosp1ta~le quarte.r .m this Court. Judicial power is the exercise of a power on the basis of pre-existing Jaw. [506C-D, 507-Bl j \ • SMT. INDIRA GANDHI V. RAJ NARAIN 369 Madliav Rao Sci11dia v. Union AIR 1'971 SC 530 Wechsler : Tdward Neutral A Principles of Constitutional Law 73 Harv. Law Rev. 1 @ 1-9; United E11gi- 11eeri11g Workers' Union v. Devanayagam (1968} A.C. 365; Justice Holmes in "Prentis v. At/antic Coast Line Co. 211 @ 216 (J;eferred to). Constituem power is the vower to frame Constitution a11d make laws by way of amending. The Constituent power is the power to frame a Constitution. The people of India in the exercise of that power framed the Constitution and ia enac.ts basic norms. By that instrument, the people conferred on the amending body the power to amend by way of addition, varia~ion or repeal any of its provisions. "Legal sovereignty" is a capacity "to determine the actions of persons in certain intended ways by means of law. The amending body which exercises the con stituent power of the legal sovereign, though limited by virtue of the decision in Bharati's case can express itself only by making Jaws. [507H, 508-E] Kcsavananda Bharati's case [1973] Supp. SCR 1 (applied). W. J. Rees: The theory of sovereignty Restored in "Mind". Vol. LIX 1950, quoted at p. 68 of In defence of Sovereignly, ed. W. J. Stankiewicz (referred to). c Distinction between constitutional law a11d ordinary law. The distinction between constitutional law and ordinary law in a rigid con stitution like ours is that the validity of the Constitutional Law cannot be chal lenged whereas that of ordinary law can be challenged on the touchstone of Constitution. A constitution cannot consist of a string of isolated dooms. A D judgment or sentence which is the result of the exercise of judicial power or of despotic discretion is not a law as it has not got the generality which is an essential characberistic of law. A despotic decision without ascertaining the facts of a case and applying the law to them though dressed in the garb of law It is a legislative judgment. The end-product of· the is like a bill of attainder. exercise of judicial power. is a judgment or sentence and nob law. Since the enJ of law is common good. the law should be framed not for private benefit but for the common good of all citizens. A statute is a general law. [508E-G, 509C-D, 510B] E The resolution of an election dispute by the amending body is not law. It is either judicial sentence or a legislative judgment like a Bill of Attainder. The pith and substance of the law enactments was a legislative plan ex-post facto to secure the conviction, although legislation ad lwminem which is directed to the course of particular proceedings may not always amount to an inter. ferene<i with the functions of the judiciary. [51 lF-G, 513C-D] Li)'anage v. The Queen [1971] 1 A.C. 259 @ 291 a11d Blackstone : Com mentad,s Vol. I, 44; Ro1~<sea11 C<intract Social Bk. fl Ch. VI, S. V. Tlwma.1• At1uinas Treatise on Law Gateway Edn. (1970) 87 (referred to). Austill: Jurisprudence 2nd Ed. Vol. I. p. 18; Kelsen : General Theorv of Law and Statute (1961) p. 38 John Chipman Grcry : Nature and Source of LGw p. 161 : Courtney Jlbert: Legislative Methods & Forms (Oxford) 1901 p. 208, J.C. Carter: Laiv Its original, growth and fu11ctlo11 (New York cmd Londdn) 1907 fl· 116 : Walter Bar,elu;t; The English Cmrntilution (1967) World's Classics Edn. (Oxford 1928) P. 119; Hayek : Law, Legislation a11d Liberty : Friedman "Legal TTreory" 5th Edn. p. 1010; Len L, Fuller : "The Morality of Law" p. 49; J. ~tory: Commentaries 0'11 the Constitution of the United States (Bostan 1833). (discussed) U.S. v. Brown 381 U.S. 437 : Cooley Co11stitwional Limitations pp. 536-537 Sth Ed. 1927 : M'Caulay; History of Eng/and p. 207 (1900) Cfause 4 of Art. 329A is a legislation ad /1omi11em Clause 4 was legisl.ation ad hominem directed against the course of hearing of f:be appeals on 11'.ents as the appeals and cross-appeah were to be disposed facts as of m accordance with that clause and not applying the law to F G H J ~ ' ' 370 SUPREME COURT REPORTS (1976] 2 S.C,R. A ascertained by the court. This was a direct interference with the decision of these appeals by the Supreme Court -on their merits by a h;gislative judgment. [513F-GJ Principles of Audi Alteram Partem violated. If the amending body really exercised judicial power that power was exer cised in violation of the principles of natural justice of "audi alteram partem". Even if a power is given to a body without s111;cifying that the rules of natural justice should be observed in exercising it, the nature of the power would caJl for its observance. There is nothing on the face of the amendment to show that the amending body ascertained the facts of the case or applied any norms for determining the validity of the election. Under Art. 368, the amending body cannot pass an ordinary law with retrospective effect to validate the election. It can only amend the Constitution by passing a Jaw of the rank of which the Constitution is made of. Adjudication facts of an election dispute cannot be gathered by legislative process behind the back of the parties; they can be gathered only by judicial process. The amending body in the instant case did . not ascertain the facts by resorting to the judicial process. [513G, 514E-F, 515A-B) Clause 4 of Art. 329A, damages the democratic structure of the Cdnstit11- tio11, ff clause ( 4) was an exercise in legislative validation without changing the Jaw which made the election invalid, when there ought to have been an exer cise of judicial power of ascertaining the adjudicative facts and applying the Jaw, the clause would damage the democratic structure of the Constitution, as the Constitution visualizes the resolution of an election dispute by a petition pre sented to an authority exercising judicial power. The contention that there was no election dispute as clause (4) by repealing the law relating to election peti tion had rendered the petition filed by the respondent non-est, if allowed, will toll the death knell of the democratic structure of the Constitution. If Art. 329(b) envisages the resolution of an election dispute by judicial process by a petitiqn presented to an authority as the appropriate legislature may by Jaw provide, a constitutional amendmen.t cannot dispense with that requirement with out damaging an·essential feature of democracy, viz.; the rnech~J.ism for deter mining the real representative of the people in an election as contemplated by the Constitution. [515B-D] relating resolved except by the amending body held the pre-existing- Jaw. When Our Constitution visuahzes 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 Jaw, provide. The nature of the dispute raised in an eleC"' tion dispute judicial it cannot be the election and process, namely by ascertaining applying the election of the appellant was valid, it could not have done to 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 Jaw but the passing of a judgment or sentence. The amending body, though possessed of judicial power had no competence to exercise unless it passed a constitutional law enab1ing it to! do so. If, however, the decision of the amending body to hold the election of the appellant val~ was the result of the exercise of an "irres ponsible despotic discretion" governed solely by what it deemed political neces ·sity or expediency, then like a bill of attainqer, it was a legislative amendment disposing or a particular election dispute and not the enactment of a law result ing 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 destroy an essential feature or 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 Jaw for determining the real representative of the people. The decision of amending body cannot be regarded as an exercise in al•nstituent legislative validation of an election for these reasons. Firstly there can be no legislative validation of an election when there is dispute be tween the parties -as regards the adjudicativ~ facts; the amending body cannot gather these facts by employing legislative process; they can be gathered only E :H • I I __.., I \ .. - t < > I SMT. INDIRA GANDHI V. RAJ NA~AIN 371 by judicial process. Secondly, !he amending body must change the law retros pectively so as to make the election valid, if the election was rendered invalid by virtue of any provision of the law actually exi!'lting at the time of election. Art. 368 does not confer on the amending body the competence to pass any ordinary law whether with or without restrosP'ective effect. Clause ( 4) expressly excluded the operation of all Jaws relating to election petition. to the election in questi'on. Therefore, the election was held to be valid not by changing the law which rendered it invalid. Thirdly, the cases cited for the appellant are cases relating to legislative validation of invalid election~ or removal of disquali fication with retrospective effect. Being cases of legislative validation or re~ moval of disqualifications by legislature, they are not liable to be tested on the basis of the theory of basic structure, which is applicable only to constitution amendment~. Fourthly there was no controversy in those cases with·regard to adjudicative facts; if there was controversy with regard to these facts, ft is verY doubtful whether there could be legislative validation of an election by a chang ing the law alone without ascertaining the adjudicative facts by judicial process. [52lA-H] Abcyasekhara v. Jayatilake [1932] A.C. 260; Piare Dusadh & Ors. v. King Emperor [1944] F.C.R. 61, Kanta Kathuria v. Ma11ak Chand Surana [19701 2 SCR 835 and State of Orissa v. Bhupendra Kumar Bose (1962) Supp. 2 SCR 380. (Considered). "Art. 14 is not a basic structure of the Constitution.'' The majority in Bharati's case did not hold that Art. 14 pertains to the basic structure of the Constitution. The majority upheld the validity of the first pal"t of Art. 31C. This would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would not destroy or damage the basic structure. The only logical basis for supporting the validity Art. 31A-31B and the first part of 31C is that Art. 14 is not a basis structure. [522B-Cl Democracy proceeds on two basic assumptions (1) popular sovereignty in the sense that the coontry should be governed by the representatives of people; that all power came from them; at their pleasure and under their watch ful supervision it must be held and (2) that there should be equality among the citiz.ens in arriving at the decisions affecting them. Today it is impossible to conceive of a democratic republican form of government without equality of ditizeDSI Our Constit:ution envisage~ the establishment of a democrat'ic republican form of government based on adult suffrage. [5220-H, 523Al Equality fs a multi-coloured concept incapable of division. 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. It i9 not sure whether they can provide a solid foundation to rear i basic structure. The types of equality which democracy guarant'ees are all subsumed under specific articles of the Constitution like articles 14, 15, 16, 17 etc. and there are no other principles of equality which is an essential feature of democratic polity. [523B-CJ "Art. 329A of/ends Rule of Law which is a basic structure of the Co11slitution" In the opini'on of some of the judges constituting the majority in Bharati's case, rule of law is a basic structure of the Omstitution apart from democracy. The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere. "Rule of law" is an expression to, give reality to something which is not readily expressible. Rule of law is based upon the liberty of the indivi-, dual and bar. as its object the harmonizing of the opposing notions of i'ndivi-< dual liberty and public order. The notion of justice maintains the balance - between the two, and justice has a variable content. [523C-D] Dicey "Constitlllions''; Jermome Frank "If men were Angels" p. 203 (1942), Friederich Hayek; "Road to Serfdom" "Constitution' of Liberty" Frank's Com mittee (1957) Report p, 6 (discussed). A B c D E F G H 372 SUPREME COURT REPORTS [1976] 2 S.C.R. A B c The rule of law from one point of view means ti1at decisions; should be made by the application of known principles and rules, and in general, such, decisions should be predictable and the citizen should know where he is. [524·C! Jafainghani v. Union of India [1967] 2 S.C.R. p. 703 @ 718 (applied) This exposition of the rule of law is only the aspiration for an ideal and it is not based on any down-to-earth analysis of practical problems with which a modem government is confronted. ' In the world of action, this ideal cannot be worked ou< and that is the reason why this exposition has been rejected b)' all .practical men. [524-C-D] There is a genuine concept of rule of' law and that concept implies equalitr before the law or equal subjection of all classes to the ordinary law. But if rule of law i9 to be a basic structure of the Constitution, Ol1'e must find specific pro visions in the Constitution embodying the constituent elements of the concept. It cannot be conceived of rule of law as a twinklin~ star up above the constitu" tion. To be a basic structure, it must 1Je a terrestnal concept having its habitat within the four-corners of the Constitution. The provisions of the Constitution wero enacted with a view to ensure the rnle of law. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other a1ticles 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 funda mental postubte of republicanism are both embodied in Ati. 14. [524G-H, 525-CJ D Basheswar Nath v. The Commission,er of Income Tax [1959] (!) SCR 528: State of West Bengal v. Anwar A Ii Sarkar [1952] SCR 284, Ward v. Flood 17 Am. Rep. 405 (disi:ussed). .. . { Qu(J.('re : If, according to the majority in Bharati's case Article 14 .toes 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 ? [525-DT I "Cl. 4 of Art. 329A is bed and 1mco11stitwidi1al" Clause ( 4) is bad and has to be struck. down, as unconstitutional, Clauses l to 3 of Art. 329A are severable. [525-E] E (His Lordship did not express any opinion on validity of claru;es 1 to 3 or Art. J29A as it was not necessary for deciding tbe case]. [525-E] "T/1ere is 110 inldbition as suc/1 in Art. 368 to destroy or damage the basic stmcture by an amendment so far as the powers of Parliamellt to pass laws are cancerned." F • T™' inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitatic>n on the power of amendment unde1· Art, 368 read into it by the majority in Bharati's case because of their assnmP tion that there are certain fundamental features in the constitution which i'ts makers intended to remain there in perpetuity. There is no such inhibitiort so far as the power of Parliament or State legisla.tures to pass laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the· power of Parliament and legislature to pass laws. It is only the specific p1<0vi sions enacted in the Constitution which could operate as limitation upon that power. [525 G-H, 526-A] G "Preamble is 11eit/1er a source nor a limitation 11po11 tile power of lei:isfafio11. It is. impossible to spin out any concrete concept of basic sfmctw·e out of tf1e fiOSSlTlner conL'epts set out in the Prean1ble.'' / • l ;). H The Preamble, though a part of tbe Consti'tutioDJ is neither a source of power nor a limitation upon that power. Tiie Preamble sets out the ideological aspira tiaos of the people. The essential features of the great roncepts set out in t11e It is these preamble are delineated in the various provisions of the Constitution. specific provisions in the body of the Constitution which determine the type of SMT. INDIRA GANDHI V. RAJ NARAIN 373 democracy which the founders of that instrument established; the quality and nature of justice political, social and economic which was their desideratum, the content of liberty of thought and expression which they entrenched in document, the scope of equality of status and of opportunity which they enshrin- ed in it. These specific provisions enacted in the Constitution alone can deter- mine the basic structure of the Constitution as established. These specific pro visions either separately or in combination determine the content of the great con- It is impossible to spin out any concrete concept cepts set out in the preamble. of basic structure out of the gossamer concepts set out in the preamble. The specific provisions of the ConstitutiO!li are the stuff from which the basic struc- ture has to be, woven. [526A-D] · \ .. • "Free and fair election in an ideal democracy is not a test to which law can be subjected to" .. The norms of election set out by parliament or state legislatures tested the light of the provisions of the Constitution or necessary implications therefrom constitute the law of the land. That law cannot be subject to any other test, like the test of free and fair election in an ideal democracy. An ordinary law cannot be declared invalid for the reason that it goes against the vague con cept 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. [526D-F] (Finer : Comparative Government (1970) pp. 62-63 Giovanni Sartori : Democratic Tlzeor)' Ch. I;) "Law can be tested dnly on the principles of Democracy actually incorporated in the Constitution." The term democracy has not only a descriptive or denotative function, but also a normative and persuasive function. A firm distinction should be made between t!J.e is and the ought of democracy. The prescriptive and the descrip tive definition of democracy must not be confused because the democraiic ideal does not define the democratic reality and vice versa; the real democracy is not and cannot be the same as the ideal one. One cannot test the validity of an ordinary law with reference to the esSential elements of an ideal democracy. It can be tested only with reference to the principles of democracy actually incor~ porated in the Constitution. Nor can democracy be tested on the touchstone of justice. The concept of social justice is vague · and indefinite. Liberty of thought, expression belief, faith and worship are not absolute concepts. They are emotive words. They mean different things to different people. Equality of status and of opportunity are concepts laden with emotional overtones. In their absoluteness they are in~apable of actual realisation. The enacting provisions in the body of the Constitution alone give concrete shape to these ideas and it is on the basis of these provisions that the validity of ordinary law should be tested. [527 A-El Giovanni Sartori; "Democratic Theory Ch. l, Hanskelsen; General Theory of Law and State" (1946) p. 13 and G. K. Al/en "Aspects of Justice" p. 31 (refer red to). "The doctrine of the spirit of the Constirutidn is a slipper slope". ;representation of the people in the law-making organs. The method by which this representation has to be effectuated has been provided in part XV of the Constitution. Under Article 329(a) the Constitution has entrusted the task: of framing the law relating to election parliament, and subject to the Jaw made by Parliament, to the State legislature. An important branch of the law which sounds in the area of free and fair election, namely, delimitation of constituen cies and allotment of seats to such constituencies is put by Art. 327 and 328 beyond the cognizance of court. When it is found that the task of writing the legislation on the subject has been committed to Parliament ang State legi 0fatures by the Constitution, it is incompetent for a court to test its validity on the basis of some vague norms of free, and fair election. Like other Jaws made by par!ia-· m'ent or state legislatures, the Jaws made under Articles 327 and 328 are liable to be· tested by Part Ill of the Constituti'on or any other provision of the Cons titution, but it is difficult to see how these Jaws could be challenged on the 3-126 Sup. Cf/76 .. ,. I "" . \ A B c D E F G .H 374 SUPREME COURT REPORTS [1976] 2 ·s.c.R. A ground that they do not conform to some ideal notions of free and fair election to be evolved by the court from out of airy nothing. [527F-G. 528A-C] "The doctrine of the spirits of the Constitution is a slippery slope". The doctrine of the 'spirit' of the Constitution is a slippery slope. T!Je courts are not at liberty ta declare an act void, because, in their opinion, It rs opposed to the spirit of democracy or repu.blicanism supposed to pervade the Constitution but not expressed in words. When the fundametttal law has not ~limited, either in terms or by necessary implication, the general powers con ferred upon the legislature, the Court cannot declare a limitation under the some ideal norm : of free and fair election. notion of having discovered [528-D] .. The principles of democratic republfcan government are not a set of inflexible rules; and unless they are specifically incorporated in the Constitution, no law can be· declared bad merely because the court thinks that it is opposed to some implication drawn from the concept. [528-F] Cooley: Constitutional /imitations, Stlz Ed. Vol. I (referred to). "Bharati's case does not support either of the propositiom viz. (i) an ordi· nm·y law, if it damages the basic structune should be held bad (ii) that a co11sti t111ional omendme/lf putting an Act in the Ninth Schedule would make the pro- 1·isio11s of the Act \'11/nerable for the reasons that tiiey damage or destroy ha.1ic structure constituted not by the fundamellfal rights, bllf by some .other basic structure". Even though an Act is put in the Nin th Schedule by a constitution amend ment, its provisions would. be open to attack on the ground that they destrey or damage the basic structure if the fundamental right or rights tak~n away or abrogated pertains or periain to: basic structure. But the Act cannot be attack-· ed, for a collateral reason, namely, that the provisions of the Act have destroyed or damaged some other basic structure, say for instance, democracy o ~ sepa ration of powers. There is no support from the majority in Bbarati's case for the proposition that an ordinary law, if it damages or destroys basic, structure should be held bad or for the proposition that a constitutional amendment put ting an Act in the Ninth Schedule would make the provisions of the Act vulner able for the reasons that they damage or ilestroy the basic structure constituted not by the fundamental rights taken. away or abridged but some other basic htructure. And, in principle, .there is no reason for accepting the correctness of the proposition. The Constitution makers eschewed to incorporate the "due process" clause in that instrument apprehending that the vague contours of that concept will make the court a third chamber. The concept of basic struc ture as brooding omnipresence in the sky apart from the specific provisions of the Constitution constituting it is too vague and indefinite tu provide a yard stick. to determine the validity o~ an ordinary law. [529B-C, F-H] "Election /c.ll's do not attain the stntus of constituliona/ law by virtue of heing put in the Ninth Schedule". It may be assumed that these election laws amendment Acts, even after th"y were put in the Ninth Schedule by Constitutional amendmer.t remained open to attack for contravent_ion, 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 Jaw of the land. They did not attain the, status of constitutional Jaw merely because they were put in the Ninth Schedule. The utmost that can be said is that even after putting them in the Ninth Schedule, their provisions would be open to chalienge on the ground that they fook away or abrogated all or any of the fundamental rights, and therefore damaged or destroyed a basic structure if the fundamental rights or right taken away er abrogated constitute or constitutes a basic structure. [530A-C] "Retro.1pectil'e legislation is intra rires the powers of Par/irlmF!nt to legis late." Retrospective operation of law in the field of election bas been upheld by this Court in Kanta Katlwria v. Manak Chand Surana. Retrospective• operation I > B c D E F G H I SMT. INDIRA GANDHI V. RAJ NARAIN 375 of any Jaw would cause hardship to some person or other. This is inevitable; but that is no reason to deny to the legislature the power to enact retrospective In the case of a Jaw which has retrospective effect, the theory is (l:lat iaw. the Jaw was actually in operation in the past and if the provisions of the Acts are general in their operation, there can be no challenge on the ground of dis crimination or unfairness merely because of their retrospective effect. If an Act cannot be challenged on the ground that its provisions are discriminatory or unreasonable if it is prospective in operation, those provisions cannot be attack ed on these grounds merely because the provisions were given retrospective effect unless there are special circumstances and in the instant ca~e there are no such These Acts are not liable to be challenged on any of special circumstances. the grounds. [5300-G] A B Kanta Kathuria v. Manak Chand SurallC' [1970] 2 SCR 835 (affirmed). "The Election Law (Amendment) Act 40, 1975--mid the Constitution (Thirty-ninth Amendmellf) Act 1975 canndt be challenged on the score. that ll 1111111ber of 1r1c111bcrs of Parlia111ent were in detention and prevented froni taking deliberations in the Parliameni" c Jn Ananda Nambiar v. Chief Secretary Govt. of Madras [1966] 2 SCR p. 406 this Court held that the member of Parliament had no privilege which obliged the court to release him from custody in order to enable him to attend the sessions of the Parliament. convicted of a criminal offence. and is undergoing sentence in pursuance to his. conviction has no right or privilege to be released from custody for attending Parliament. The very same principle will apply in the case of detention under D an emergency regulation. Jn England a member of Parliament who [531C-D] A. Nambiar v. Chief Secretary [1966] 2 SCR 406 (noti applicable). May's Parliamentary Practice 18th Ed. p. 103, 372 (referred to). Ever since the decision of Holt C.J. in Ashby v. White 'it has been settled that privilege is part of the common law and cannot affect rights to be exercised outside or independently of the House. Regularity of internal proceedings is one rhing; the constitutional rights of the subject are another; and it is the latter E which are in issue in a case where the question is whether t4e document is a statute. [533E-FJ > Bmdlaugh v. Gossett, 12 Q.B.D. 271, 285-286 and Ashby v. White, 1703 (14 ), St. Tr. 695 and May's Parliamentary Practice. Heksten: Essays in Con 'stitutionnl Law ended, p. 22 (applied). Art. 85 (I) provides that the President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not in'tervene between the last. sitting in one session alild 'he date appointed for its first sitting in the next session. Art. 122 (1) provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure, so even if there is any irregularitiy in the procedure in the passing of the statute, it is not open to a court to question its validity. [533G, BJ The detention of the members of Parliament was by statutory authorities in the purported exercise of rheir statutory power. It would be strange if a statu tory authority, by an order which turns out to be illegal, could prevent the Houses of Parliament from meeting If a statutory authority passes an illegal order of detention and thus prevents a member of Parliament from attending the House the proceedings of Parliament cannot It is the privilege of Parliament to secure the become illegal for that reason. 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. as enjoined by Art. 85. [533H, •534A-B1 ~ The President in performing his constitutional functions under Articles 352, and 359 has not authorised the illegal detention of any person let alone any members of Parliament or unconstitutionally prevented the release from custody F G H A B C D E F G n 376 SUPREME COURT REPORTS [1976] 2 S.C.R. of any member. He has only discharged his constitntional fnnctions. If this be s~, it is difficnlt 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 mnst be over-ruled. [534D-EJ ·"Ca11didate, mea11i11g of-for purposes of corrupt practice." There can be no doubt that s. 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 sub section would be absurd. But there is no such compulsion to read the words "candidate" in s.123(7) in the same manner. It is the content that gives colour to a word. A word is not crystal clear S. 79 of the Act indi cate3 that the definitions therein have to be read snbject 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. [53 5E-FJ Halsbury's Laws of England 3rd Edn, Vol. IV p. 332 218 (referred to) : U11io11 of I11dia and Anr. etc. v. M /s Parameswaran Match Works etc. [1975] 2 SCR 573'@ 579•; Louisville Gas Co. v. Alabama Power Co. 240 US 30 @ 32 (relied dn). There is no excessive delegatio11 i11, cl. 8(b) of EL Act 40 of 1975. Clause 8 (b) of the Election Laws Amendment Act, 40 of 197 5 does not suffer from the vice of excessive delegation and is not arbitrary. [536C] Per Beg, J. The meaning of the Principle of the Supremacy of the Co11sti tutio11 is tlzat neither of the three constitutionally separate organs of State, can leap 01uside the boundaries of its own constitutionally assig11ed : The assumption ·underlying the theory of Judicial review of all law making, including fundamental law making is that courts, acting as interpreters of the "Real Will" of the people embodied in their constitution and assumed to be more lasting and just and rational and less liable to .err than their "General Will', represented by the opinions of the majorities in Parliament and the State Legislatures for the time being can discover the not always easily perceived pur poses of their constitution for the people. The courts thus act as agents and mouthpieces of the "Real Will" of the people themselves. Just as courts are not constitutionally competent to Legislate under the guise of interpretation so also neither our Parliament, nor any State Legislature, in the purported exercise of any kind of law making power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case. This power must a~ least be first constitutionally taken awav from the court concerned and vested in another authority before it can lb is not a necessary or even a natural be lawfully exercised by that authority. incident of a "Constituent power". The logical and natural meaning of the princ'iple of supremacy of the Constitution is that neither of the three constitu tionally separate organs of State can, according to the basic scheme of our Constitution to-day, leap outiside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other. [538G-H, 539A-EJ Bosanquet "Philosophical theory of the State etc. Ch. V. 96-115 Hanskelsen" "General Theory of Law and the State" p. 143, referred to. Legal effect and nature of the stay order. but a "co11ditio11ed stay order." It was not a "co11ditio11al stay", The legal effect of the stay order was that the trial Court's order, to use the language of s.116(B)(3) of the Representation of the People Act, 1951, "shall be deemed never to have taken effect". It did not matter if the stay order, out of deference for existing precedents had been framed in the form of a "conditioned" stay, that is to say, a stay in law and effect 'with certain con Indeed, having regard to the ditions annexed. nature! of the order, the operation of which was to be stayed, there could be no It was no- a conditional stay. • l > A B c D E F SMT. INDIRA GANDHI V. )1AJ NARAIN 377 ·'conditional" stay in this case. As to the legal effect of such a stay order, there is no doubt, that, considering the clear words of section 116(B)(3) of the 4ct, it deprived the order of the High Court of any operative force whatsoever durmg the pendency of these appeals. There could be really no binding precedent in discretionary matters depending on the facts and circumstances of each case. The operation of the judgment of the trial court and the consequential orders are stayed only on "sufficient cause" shown on the facts of that case. [540E·G] Under section 123 (7) of the Repre~entation of the People Act the obtaining or procuring or abetting or attempting to obtain or procure had to take place either by a candidate or by his agent or by somebody with the consent of the candidate or his election agent. The question of vicarious liability will a!ise only from the date of appointment as such agent and only when a case of obtaining indirect assistance is set up. \ ,.,/' Un~il the candidate had appointed an election agent, the action of any other parson could not constitute him automatically an agent so that he may, by doing something voluntarily, succeed in making the candidate vicariously liable for his own actions whether he was or was not a gazetted officer at the time when he committed the act complained of. The question of obtaining assis tance through an agent or other person could only arise where such a case of obtaining assistance indirectly through others is set up but not otherwise. [545A-B] "Liability by implication, Nature of the Principle" Whenever a case of a liability by implication, where there is such a species of liability in law, comparable to a criminal Jia:bility, is to be fastened upon an individual, the prosecutor is to be expected, as part of an elementary duty to give fair notice and a fair opportunity to meet what the individual has rea-lly to be made liable for, either because of some act or omission of the individual concerned, or, even more so, for that of an agent, or another person fo1' which there may be some sort of' vicarious liability from facts showing consent or agency, to give full particulars of circumstances from which such implications or vicarious liabilities may arise. [545G·H, 5461\] On the language of section 123(7) a liability in not created by merely not rejecting voluntarily given aid. The candidate may not often be aware ·of the voluntarily given assistance so as to be able to reject it. A case of consent which can be legally set up is only one of consenting to active obtaining o~ procurement by an agent or by some other person who becomes, fo.r the purposes of the specific aid given and consented to, ordinarily prior to obtaining it, as good as an agent employed by the candidate. [546C·Dl "Types .of cases of actual obtaining of assistance u/s. 123(7) On the terms of Section 123(7) the following three types of cases of actual obtaining of assistance, as distinguished from abetment or attempting to obtain it can be legally set up either exclusively or alternatively against a candidate: (il a direct obtaining of it by the act of th" candidate himself; (ii) an indirect or vicarious procurement of it by the acts of a duly constituted agent, and (iii) an indirect or vicarious procurement of it by the acts of a person who, though not a duty constituted agent becomes constructively an agent for the purpose G of some particular aid obtained, because it was assented to by the candidate at a time which, must, ordinarily, be before the aid is given, so that the person through whom assistance is obtained is a constructive agent for this particular aid at the time when it is given. The term procurement should, strictly speaking, s. 100( 1) (b) apply only in the last two furtheir emphasises the position that a corrupt practice for which the High Court fa to declare an election void must have been committed either by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent". A case falling u/s. 100(1) (d) H (ii) of a "Corrupt practice committed interest of a candidate by an agent other than his election agent is very different and postulates ( 1) a, corrupt practice which is committed only by an agent, and,; (ii) the existence of such types of cases. A reference " I , > ' 378 SUPREME COURT REPORTS (1976) 2 S.C.R. '· A B c an agent, and then requires proof of the further fact that the result of the election was materially affected by the corrupt practice. [5460-G] Jt is the act of solicitation for the aid of the officials mentioned in S. 123(7), wh.ether successful or not, and not the mere fact that certain advantage flow qmte naturally and conventionally from the occupation of an office without any solicitation, or the mere fact that some assistance is voluntarily given by some one to an election campaign which is penalised by the provision. [547-D] Voluntary rendering of help by a Government ser.vant without any attempt by the candidate concerned to "obtain" or "procure" it does not constitute a "Corrupt practice" of the candidate, whatever be the impropriety of it for the Government servant himself._ [563E-F] Hafiz Mohd. Ibrahim v. Elcctioll Tribullal 13 E.L.R. P. 262 and Rcmphal v. Brahm Prakash 23 E.L.R. (Punjab) p. 92, (1968), applied. Corrupt practice could not be committed by any person before there was . .a ''candidate" The definition in section 123(7) meant, on a ordinary and natural inter pretaticm of words used, that the corrupt practice defined there could not be [547-E] committed by any pElrson before he was a "candidate" for an election. In any case, if there was any uncertainty at all, in the law, it has been removed by amendment of section 7 of the Act. 40 of 1975, so that Section 79(b) reads as follows : D "Candidate means a person who has been on claims to have been duly nomi· nated as a candidate at any election." [569C-D] E F G H Prooj of "mens rea" fdr the act of actus reus is necessary to substantiate allegations of corrupt prac.tice It is a . well settled rule that allegations of corrupt practice in the course of an election must be judged by the same standards as a criminial charge. And, no rule of evidence, in judging guilt on a criminal charge, is more firmly rooted than that no charge, resting on circumstantial evidence, could be held to be proved beyond reasonable doubt unless the chain of circumstances is so complete and so connected with the charge that it leaves no other reasonable hypothesis open for the court to adopt except that the offender had committed the offence alleged. [550C-E] Smt. Om Prab/w Jain v. Charan Das & Anr. AIR 1975 S.C. 1417 @ 1426, relied. on. The logical conseCJ,uence of placing a charge of . corrupt practice on !he same footing as a crimlflal charge is the obligation to mterpr~t the .words wh~ch define it strictly and narrowly. Indeed, any natural and ord10.ary interpretation on the words "obtaining or procuring or abettin& or attemptmg" mu~t carry with it the imperative requirement that the candidate concerned or ht• ag~nt must have intentionally done an act which has the effect contemplated by Section 123(7). In other words, a "mens rea" or a guilty mind as well as an "actus reus" or a wrongful act must concur to pro~uc~ the r~sult contemp.lated by Jaw. So far as election expenses are concerned, It ts possib!e to conceive. that .ev.en an unintentional result (i.e. expenses "incurred" exceedmg the p1escnbed hmit) may be enough: so that a duty to' prevent this result may be there in law. But, S. 123(7) requires actual intended acts of "obtaining" or "procuring" or attempt. ing or abetti.ng. For s. 123(7·) results are immaterial. S.123(7) does not create an "absolute -statuto!'y liability". [548A-C] Dr. Y. S. Parmar v. Hira Singh, AIR 1959 S.C. p. 244, dissented from. Satyadel' Bushahiri v. Padam Dev and ors. 10 E.L.R. 103 (S.C.) 1954, 103 (SC) (1954); McJ1e11dra Kumar v. Vidyavati & Ors. 10 E.L.R. 214 (SC) 1954; . I ! "' t SMT. INDIRA GANDHI V. RAJ NARAIN 379 Babubhai Va./lab!z Das Gandhi v. Pil/ao Homi Mody 36 E.LR. 108 @ 123-124; Haji Abdul Wahid v. B. V. Keskar 21 ELR 409' @ 432, discussed. Before a candidate can be held guilty of a corrupt practice a mens as well as an actus reus must be shown on the. part of either the candidate herself or her election agent; and, on the evidence on record mens rea was a necessary ingredient of the corrupt practice and the doctrine of constructive knowledge is not applicable. [573F-G] Moti/al v. Manglaprasad AIR 1958 794 @ 797 and Biresh Mishra v. Ram Nath Sharma & Ors. 17 ELR 243 @ 253, referred to. Sheopath Singh v. Ram Pratap [1965] 1 SCR 1975, relied on. A B in the instant case, the election petition alleged a wrongfully obtained and procured assistance due to acts of the respondent as well as her election agent Shri Yashpal Kapoor. Proof of actual mens rea as well as actus reus was not given. The allegation of "corrupt practice" was, therefore, liable to be rejected C on thi's ground alone since there could not possibly, on the facts of the case, be any mens rea on the part of appellant. [573H-574A] Contractual iwtice on termination of Government serrice Oil either side is not cdmpulso1y. It is abundantly clear from Rule 5(b) of the. Central Civil Services (Tempo .rary Service) Rules, 1949, that the Government and the Government servant could dispense with the period of notice if it was mutually agreed upon to do that. [558-F] D Neither the Government nor the Government servant is in a worse position In fact, Art. 310 than the ordinary master and servant governed by contract. makes it clear that in such. a case. the tenure of office of a Central Government is "during the pleasure of the President" It is inconcievable that the law shonld thrust the status of a Government servant upon one who does not want it, jparticularly when the Government also does not in public interest, refuse to relieve him, by making him stick to any terms to the contrary in his contract. Our law on this point is not so monstrous as to foist the "statm" of a Govern ment servant on anyone in such, circumstances. However, there was an amend ment also in the law by s. 1 of Act 40/1975, which was made retrospective by Sec. 10 of Act 40/1975, and that makes the legal position still clearer. [558G-H, 559B,F] Halsbury's Laws of England Vol. V (Simond's Edn.) p. 61 Edwards M. Edwards v. United States ( 1800) 26 Lawyers Edn. p. 31. Raj Kumar v. Union of India [1968] (3) SCR 857; Raj Narain v. Smt. Indira Nehru Gandhi, (1972], (3) SCR 841 (referred to). Mere possibility of abuse of power does not invalidate the provisions of all Act; right to complain begins after t.he event. E F There is no foree in the contention that the power conferred by Election Law those who Amendment Act upon the Government is bound to be abused by hold the reins of Government. The presumption is that a bona fide use will G be made of this power lodged in such responsible hands. If such powers are ever exercised in a mala fide manner, it is the particular exercise of the power that can be questioned and struck down. The provisions do not become invalid merely because it could be abused as practically any provision of law can be by those who may want to do so. [559G-H] Chailenge· on the ground that it conld be misused or likelihood of mis use, in future, cannot possibly succeed. The possibility of misuse of power given by a statute cannot invalidate the provision conferring the power. The H occasion to complain can only arise where there is such alleged misuse. Even the possibility of such misuse of the power by so responsible an official as the Election Commissioner cannot be easily conceived of. [578C-D] \ ·' ) ! • 380 SUPREME COURT REPORTS [1976] 2 S.C.R. A B Df. B. N. Khare v. State of Delhi [1952] SCR 519 @ p. 562, State of Wesz Bengal v. A. A. Sarkar [1952] SCR 284 @ p. 301; R. K. Dalmia v. Justice Tendolkar [1959] SCR 279 @ p. 306; T. K. Mudaliar v. Venkatachafam [1955] (2) SCR 11% @ 1239; Chitralekha v. State of Mysore [1964] (6) SCR 368 @ p. 382-383; M. R. Dcka v. N. E. F. Rly. [1964] (5) SCR p. 683 (referred to.) Act 58/1974 could be justified as merely an attempt to restore the law as understood prior to Amarnath Chawlds case. · The amendment made by Act 58 of 1974, by adding the explanation (1) to Sec. 77 ( 1) of the Act, could be justified as merely an attempt to restore law as it has been understood to be previous to decisions of this Court in Kanwar/al Gupta's case. [582 D] Kanwar/al Gupta v. Amarnath Chawla AIR 1975 SC p. 308 @ 315-316 (no longer good law). c "Allegations of corrupt practice u/ s 123 in an election petition ul s 83 ( l)(b) require pleading with sufficient particulars of legal evidence and no amount of evidence· can be looked into> onl a case not really setup". It was quite unfair The principle that no amount of evidence could be Jocked into on a case not really set up was applicable in the instant case. expect the original respondent to meet ~ case of a de facto agency which was not set np at all. Furthermore, the case of de facto agency was, in the cir cumstances of the particular case, only pos'3ible to set up if the respondent had made some request to an alleged agent to go and conduct the election cam paign even before he was appointed her election agent on 1-2-1971. The Court cannot, without proof of any specific request or solicitation or even knowledge of or consent to the doing of any particular acts which the alleged agent may have done, make the candidate vicariously liable for them. Of this, there was not only no evidence whatsoever on record, but the evidence is to the contrary. If this was not established by evidence on record, it could be said that the bottom was knocked out of even such. a hypothetical case. Had a case of de facto agency been argued, it is not conceivable that certain cases of Division Benches of th~ Allahabad High Court would not have been cited to show on what kind of evidence it could succeed. [562 E-F, A-Bl Rustom 5atin v. Dr. Sampurnanand and Ors. XX ELR 221 @ J. P. Rc•wat v. K. D. Paliwal XX ELR (All) 443, 456, referred to. 243; The principle that no amount of evidence can be looked into on a case not set up i's sufficient to dispose of the evidence songht to be adduced a bout a cheque of Rs. 70,000/_-· received by Shri D. B. Singh, who was not summoned by either party to prove what it was spent upon if it was spent at all. Section 83 (1) (b) of the Act contains the mandatory provision that the petition 'shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice." [581 G-H, 582 A] - · Absence of proof of a desire to change the constituency is not proof of a a. positive holding out as a candidate under the unamended s. 79(h) of rite Representation of the People Act. 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 cgncerned himself' has said or done, so as to amount to a "holding out" as a candidate by the candidate from a particular cons!lituency. Mere speculation of rumour circulated by other persons interested in finding out the the Prime Minister's constituency could only prove what their own expectations or beliefs were. This type of evidence, strictly speaking, could not even be admissible unless ' it could be related to s-Omething actually said or done by the candidate. All that such "evidence", consisting of speculation and rumours, could prove was that people interested were speculating or indulging in guess work. [565 E-F] D E F G H SMT. INDIRA GANDHI V. RAJ NARAIN 38 I In the instant case, the answer of the Prime Minister at tm:, Press conference 'Oil 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 Com~ mittee on 29-1-1971, assuming that there was such an announcement, could not mean that the Prime Minister had held herself out as a .candidate for the \fhis "holding out has to take place by the Prime Minister heFself constituency. and not by the Congress Committee." [567 A-B] A In any case, if there was any uncertainty at all, in the Jaw, it has been removed by an amendment by section 7 of Act No. 40/19,75, changing the B definition of "candidate" in S. 79'(b) of the Representation of the People Act. [569-C] Mwudswami Gounder v. S. Khader Sharif] 4 E.L.R. 283 @ 292; S. Khader Sharif] v. Munniswami Gounder and Ors. [1955] (2) SCR 469 @ 473 lrelied on). J. P. Rawat v. Krishna Dutt Paliwal 20 ELR (Act) p. 443 @ 463; Haji Abdul Wahid v. B. V. Keskar and Anr. 21 ELR (Act) 409. K. K. Mishra V. Baramali Babu 38 ELR (Orissa) p. 451 453. (referred to). C "Punitive character df corrupt practice under the Indian Penal Code and under the Peoples Representatidn Act, 1951. Corrupt practices of a candidate cannot go unpunished, whether they are committed before or after he becomes a candidate, when they amount to acts which come within the purvi~w of electoral offences dealt with by chapter 3, Sections 125, 126, 127, 127(A) or chapter 9A of the Indian Penal Code. Offences such as bribery, for purposes of either ind11cing persons to vote or not D to vote or to stand or not to stand as candidates, undue infiuence and persona~ tion etc. should be sufficient deterrents against perver~ion of the electoral process by those prospective candidates, who want to adopt corrupt and objectionable means for gaining success at the polls. [569 GH, 570 Al The Amendment of the definition "ccmdidate" in s. 79(b) with retrospec tive .effect, is i11t1:a vires of the powers of the Parliament to legislate under Art. 327 of the Constitution of India. Duty of the Court to interfere with and when to interfere. The amendment of Section 79(b) by section 7 r /w section 10 of the Elec tion Laws (Amendment) Act 40 of 1975 is within the unquestionable powers of Parliament to legislate, either prospectively or retrospectively, with regard It is incapable of being interpreted as an attack on free to election matters. and fair elections. Court 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 of people of this country, for the protection of demo- crncy, and of free and fair elections, in accordance with the needs of the It is only democratic process better than courts, know and understand these. where a piece of legislation clearly infringes a constitutional provision or indubitably overrides a constitutional purpose or mandate or prohibition that courts can interfere. There is no invalidity in this provision. E F Even if the present definition of candidate is a new one, it cannot be said to be arbitrary. The concept contained in it is found in the English defin- tion. [569 FJ G Halsbury's Laws of England 3rd Edn. Vol. 14 p. 162 (referred to). "Faci/.ities to the Prime Minister in compliance with the official rules and Instructions do not fall under corrupt practice within the meaning of s. 123(7) of the Represellfation of the People Act." The State Government had acted in compliance with the instructions issued by the Comptroller and Auditor General of India in 1958 read with Rule 71 (6) of what is known as the Blue Book. The provisions of Section 123 (7) were intended to prevent solicitation for aid and not sending of information to the State Government in the course of ordinary official business even if the candi· date concerned knows that the State Government is bound, under the rules, H r A B c D E 382 SUPREME COURT REPORTS [1976] 2 'S.C.R. ' to make the necessary arrangements dictated by the needs of the security of the Prime Minister and convenience of the public. [570 G-H, 571 G] The case, that by instructing the State Government, knowing that it will make the necessary arrangements through its servants, the returned candidate was employing the State Govt. as her agency in prbcurising the aid of' the Officers concerned, was neither set up nor put in issue. [571 F] factually &S well The view taken by the High Court that the "persona" of a candidate during the election must not only be different from that of the Prime Minister, but also that when the two capacities are held by the same person, the secuoify arrange ments are made to protect an artificial legal "Persona" and not the persona of the Prime ~,Iinister is manifestly erroneous. The security <rrrangements are not to be withdrnwn merely because the Prime Minister at some particular moment of time, acts in another capacity. Even if the court were to recognise this dis tinction between the "Persona" of the Prime Minister and that of a candidate, it is impossible to separate the special iurangements made for the security of the person of the Prime Minister from these to which she may be entitled as a candidate only. It is impossible to deny at any time the facilities and precau tions meant for the person who holds the office of the Prime Minister to the person just because she also figures as a candidate at an election. So Jong as the person is the same, what is meant for the person must be attributed to> the persona or capacity of the Prime Minister and not to that of a candidate only. So long as the person was the same the distinction between the two capacities or personae for the purposes for which facilities were given and the proteclion impossible and quite provided, was both solicitation of official aid immaterial. Such a case could not be 'one of It is a case in which certain precautions are taken <rnd arrange and assistance. ments made almost "automatically" by officers of the State, as a m<rtter of duty towards the office held by a candidate who undoubtedly enjoys certain advan tages, which an ordinary candidate cannot have. The appurtenances of office or distinctions achieved are comparable to those personal advantages which are not enjoyed because they are "obtained" or "proce,red" by a candidate <rs any official favour shewn, but as a matter of right under the rules. The officials concerned only perform their duties under the law and are not giving aid "procured" or "obtained". If such a result in law is unfair, it is not for courts to find a remedy by accepting the argument that those who enjoy the benefits of office must be made to realise and suffer some of its handicaps. Thi~ clearly means that the benefit which law gives, without solicitation by the candi date, must be converted, by a jedicia,l fiat, into a disadvantage and a Jiandicap. It is for Parliament to step in and change the Jaw if an alteration of it is con sidered necessary by it The only change that need be made in the law, if that could be the legislative intent, is to provide that the holder of any office for the time being would not be qmdified to stand at an election, .In that event, holders of' all ministerial offices will have to resign before they offelf th.emselves as candidates. But. such is not our law found in the 1951 Act or anywhere else. rt would be extending the scope of section 123 (7) too wide to hold that the facilities automatically provided by the State to the Prime Minister, by virtue of his ·or her office. are also struck by a provision directed against solicit<rtion of official aid and assistance by candidates, (571 H, 572 A-H, 573 A-Bl legaily • G Motilal v. Mang/a Prasad AJ.R, 19•58 Alt 794 & 797; Biresh Mishra v. Ram Nath Sharma and ors, 17 ELR All 243 @ 253, referred to. Amendment· with retrospective effect of the definition of the candidate in is only clari/icatory by the law and cannot be characterised as altering s. 79(b) the "rules of the 1::ame", H Parliament could certainly set right a defect in law which may have come to its notice <rs a result of the interpretation of s, 123 (7). It is not, possible to question the motives behind the legislation. when the defect due to a possible ambiguity is removed, because a judicial interpretation focusses the attentio1t of Parliament on the need for a clarification of the law which becomes evident. This amendment with retrospective effect is merely a clarification of the state of Ja,w as it really was even before the amendment, but was misunderstood. I SMT. INDIRA GANDHI V. RAJ NARAIN 383 There is no question here of altering the "rules of th_e gam~". to th~ disadvau- tage of the petitioner. The disadvantage for the elect10n petitioner, if any, was there already, because of the consequences which legally and_ natura.lly flow frOJ!I the occupation by the appelhmt of the high office of the Pnme Mm1ster of this country. [574 A-B, G-H] There is no attack on the validity of section 123(7) of the Act as it existed before the amendment. Hence, there could be no challenge to the validity of the amendment if it does not change the law but merely clarifies it. [574 H, 575 Al Amendment by i11serti11g a provisio11 at the end of s. 123(7) of the Repre se11tatio11 of the People Act by Act 40/1975 relating to certai11 facilities to the Ptime Mi11ister by virtue of h,er .office by Government official-and placing the Act 40 of 1975 under the protected Ninth S,chedule of the Constitutio11 read with Art. 31B cannot be challenged on the grmtnd of validation of Art. 14 and JIB of the Constitution of lndia. Such an attack upon the validity of this amendment viz., that, as a candidate at an election, the Prime Minister a:nd an ordinary candidate should enjoy equal protection of Jaws, is possible only under the provisions of Art. 14 of the Cons titution. But, as Act 40 of 1975, has been placed, by section 5 of the Thirty Ninth Amendment, in the protected Ninth Schedule of the Constitution, it be comes immune from such an attack. A similar attack through the back door . of a "basic structure" of the Constitution, cannot be made. This particular amendment has nothing to do with damage to any part of the "basic sbructure" of the Constitution. Even if an attack on the ground of violation of Art. 14 were open today, the occupation of such a high and important office as that of the Prime Minister of this country, with all its great hazards and trials, would provide a rationa:l basis for reasonable classification in respect of advantages possessed by a Prime Minister as a candidate at an election due to arrange ments made necessary by considerations of safety and protection of the life and person of· the Prime Minister. There is no sustainable ground of a,ttack at all on the validity of this provision. [57 5 B-E] Kesavanada Bharati's case [1973] [Suppl.] SCR p. I, affirmed. To treat unequally situated and circumstanced persons as though they 'were equals in the eyes of law for all purposes is not really to satisfy the require ments of the equality contemplated by the Constitution. The court cannot attempt to achieve, by means of judicial interpretation, an equalisation of con It is ditic-ns under which, in its opinion, candidates should contest elections. not the function of courts to embark on attempts to achieve what is only in the power of Parlia:ment to accomplish, that is to say, to bring about equality of conditions where the law permits j'ustifiable discrimination. [576 D-C] A B c D E F .,. Burden of Proof : The burden of proof is heavy on one who assails the result of an .election. [576 G] Rahimkhan v. K/1urs/iid Ahmed 1974 (2) SCC 6601 666, 672, followed. "Cow and Calf symbol, validity allotted by the Election Commissioner under' the Rules, is not a religious symbol withi11 the meaning of the rules-the svmbol will not constitute corrupt practice u/s 123(7) of the Represel!fation of the People A ct. The amendment inserted by Act 40 of 1975 is valid. · Quoting passa:ges from ancient text about the sacredness of the cow in supp~rt of the use of cow as a relig_ious symbol is useless. The use of pictures of this excellent and useful ammal 1s so frequently made today for commercial purposes or purposes other than religious that a picture of the cow and calf cannot,_ excel?t ~n so~e special and purely religious contexts, be held to have a rehg1~us s1gmfic~nce. The cow and calf symbol is not in itself a religious symbol_ m an elecl!on so as to convert its. use into a: corrupt practice unqer sec llon 123(3) of the Act. [578 F-G] G H A c -0 E F G H 384 SUPREME COURT REPORTS [1976] 2 ·s.c.R. \ Blzar~tandro Singh v. Ram Salzava Pandey & Ors. AIR 1972 M.P. 176 @ 179; Sl11tal Prasad Misra v. Nitiraj Singh Chaudhary M.P. Gazette, 23-6-1971, Pt. I P; 807 Paras 18 to 23. Sri Prasanna Das Damodar Das Pa/war v. /ndu Lal Kanlzaiya 1;-al Yajnik, .Gujarat Gazette dt. 20-7-1972 Pt. 4 C p. 1042 & pp, 1355 to .~362: Sh~h Jaya_ntdal Ambalal v. Kasturilal Nagin Das Doshi 36 ELR 189; Bai1anath Smgh Vzdya v. R. P. Singh 36 ELR 327; Bishambar Dayal v. Raj Ra1esh.war and Ors. 39 ELR 363 & p. 376; Dinesh Dang v. Dau/at Ram 465 & 4?6; M1ym:nta/ v. Mansa Din & Ors. 37 ELR 67 & 89; B. P. Maurya v. Prakash v1r Shastri 37 ELR 137 & p, 147; Bahadar Rai v. Ram Singh Dlzanvar and Ors. 37 ELR 176 & 188, Vishw@iath Prasad v. Salamatullah and Ors. 27 ELR 145 & (Referred f.;/86, Lachchi Ram v. J.P. Mukhalva and Ors., 9 ELR 149 & p. 157. The test of authorisation u! s 77 of the Representation of the People Act 1vou/d be creation of a liability and the case of authorisation has lo be set up and proved. The test of authorisation wou.ld naturally be the creation of a liability reimburse whoever spends the money and not necessarily the provision of money before hand by the candidate on whose behalf it is spent. Nevertheless, the authorisation has to be set up and proved. [583 BJ Kanwar/al Gupta v. Amamath Chawla, AIR 1975 S.C. P.308 @ 315-316 (no longer good Jaw) Rananjaya Singh v. Baijnath Singh [1955] (1) SCR 671 Ramdayal v. Brijraj Singh [1970] (1) SCR 530, Magrai Patadia v. R. K. Bir/a [1971] (1) SCR 118; B. Rajagopala Rao v. N. C. Ranga AIR 1971 SC 367. "Election laws in our country require proof of circumstances from which implied authorisation can be intended." than one If some expenses are shown or admitted to have been incurred by candidate's party or third persons over the election of the successful candidate, and are part of total expenditure on more question of separation of such expenses by such process of estimation and /apportionment can only arise if it is first proved that whatever expenditure was incurred by candidate's party or by any other person, who may be a friend, a relation, or a sympathiser, was incurred in circumstances from which it can be inferred that the successful candidate would reimburse the party or person who incurred it. It is only then that expenditure could be held to be authoris ed by the candidate. Voluntary expenditure by friends, pathisers and expenditure incurred by a candidate's, party, without any request or authorisation by the candidate has never been deemed to be expenditure1 by the candidate himself. (583 D-G] r~li;tions or constituency Rananjaya Singh v. Biaj11ath Singh and Ors. [1955] ( 1) SCR 671, Ram Dayal v. Brijrai Singh [1970] (1) SCR 530; Magraj Patadia v. R. K. Bir/a [1971] (2) SCR 118. Hans Raj v. Pt. Hari Ram and Ors., 40 ELR SC 125 @ 128-129; Shah Jayantilal Ambalal v. Kasfllri Lal Nagindas & Ors. etc. 42 ELR SC 307 @ 311, Samant N. Balakrishna etc. v. George Fernandez & Ors. etc. [1969] (3) SCR 603 @ 607 (relied on). It is true that, when election~ of persons in the position of a Prime Minister of even a minister, whether in the Central Government or a State Government, takes place a number of people, come forward eit~er to give or th!Ust their supposed aid in the election. for the courts ;refuse it without offending them. But, i~ is also impossible to make the candidate himself or herself responsible so as to impose an obliga tion upon the candidate not only to find out and pay them the expenses incurred by them but to add them to1 his own expenses. That would. obviously be a most unfair result. And, this is not what the Jaw requires in this country. The law requires proof of circumstances from which at least implied authorisation can be properly inferred. It may be impossible for the candidate [585 H, 586 A-Bl t ' ' .. i / SMT. INDIRA GANDHI V. RAJ NARAIN 385 Presumption as to adverse inference under section 114, Evidence . Act, is always optional and one of fact depending upon th;e whole set of facts and1 it is not obligatdry. A presumption u/s 114, Evidence Act (Act I) 1872 is always ()ptional and It is not obligatory. A' one of fact depending upon the whole set of facts. presumption could not arise from non-production of alleged evidence to m:et a case not even set up and when the Court was not even requested to exercise its discretionary powers under Order XVI Rule 14, C.P .C. [586 D·Fl M. C/zenna Reddy v. Ramachandra Rao 40 ELR p. 390 @ 415. (distinguished) V didity of the Election Law (Amendment) Act 40 of 1975-And the Con stitution (39th Amendment) Act 1975 cannot be challenged on the ground that a number of Members of Parliament were in detention and prevented from taking deliberations in the Parliament. Article 122 of the Constitution prevents this t;.ourt from going into any question relating to irregularity of Qroceedings "in Parliament." An objection that, as a number of membe,-s of Parliament belonging to the opposition parties in detention were kept .away due to orders under the Preventive Detention laws, which could not even be questioned before courts of law, because of ~he declaration of the emergency by the President, so that some procedural defect, in making the amendments of the Act of 1951 and the 39th Constitu tional amendment, arose is directly covered by the terms of Art, 122 ·of the Constitution which debars every court from examining the propriety of' Pro, ceedings "in Parliament." H any privileges of Members of Parliament were involved, it was open to them to have the question raised in Parliament. There is no provision of the Constitution providing lfor any notice to each Member of Parliament. That is also a matter completely covered by Art. 122 of the Constitution,. Issuance of notice.s are internal matters of procedure· which the ;Houses of Parliament themselves regulate. Objections on such grounds can- not be. taken to the legislative procedure. [587 A-G] Sharma v. Srikrishna AIR 1960 SC 1186 @ 1189 (followed). Col/c.teral challenge to preventive detention by way of obiections td the. validity of the Thirty Ninth Amendment and the Election Laws Amendment cannot even be entertained. As regards the validity of detentions of 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 regulaied by Articles 32 and 226 of the Constitution and the suspension of remedies under these Articles is also govern ed by appropriate constitutional provisio9s. Their legality and regularity cannot be collaterally assailed by mere assertions made by counsel. These' objections to the validity of the amendments and the 39th Amendments cannot even be entertained in this manner in these election proceedings. [387 H, 388 A-BJ . "A certificate by the Speaker that a bill has been duly passed is a conclusive evidence df the [egislt>tion." All that this court can look into, in appropriate cases is whether the proCe· dure which amounts to "legislation" or, in the case of a constitutional amend ment, which is prescribed by Art. 368 of the Constitution, was gone through As a proof of that, however, it will accept, as conclusive evidence, at all. a certificate of the Speaker, that a bill has been duly passed. [587 Fl State of Bihar v. Kameshwar AIR 1952 SC 252 @ 266 (applied). "Precise meaning of the term "constituent powers" under Art. 368 of the Constitution;" A B· c F· G The theory that the constituent power the Constitution or lies "outside" the Constitution It postulates an undifferentiated or amorphous amalgam of bare power constituting the "constituent poWer" which is independent and above the Constitution Itself because it operates on is quite novel. is above 3:l 6 SllPREJV!E COURT REPORTS [ 197 6] 2 ·s.C.R. \ A B c D E F G H the Constitution and can displace it with, so to say, one stroke of its exercise. Such an extreme theory could not be supported by any of the earlier cases. The majority view in Bharati's case seemed to be that both the supremacy of the Constitution and separation of powers are parts of the ba5ic structure of the Constitution. To accept a theory that the constituent power Is outside th'<! Constitution and operates independently and above the Constitution itself, would make it unnecessary to have a Constitut1on beyond one consisting of a single sentence laying down that every kind. of power is vested in the consti-· tuent bodies, which may, by means of a single consolidated order or declaration of law exercise any or all of them themselves whenever they pleased to do so whether such powers be executive, legislative or judicial. • This cannot be the ambit of "constituent power" in our constitution. Such a ·view will defeat the whole purpose of a cOn'.titution. [594 G-H, 59.S A-DJ T. C. Golaknatlz v. State of Punjab [1967] (2) SCR 672 Kesm·ananda Bharti's case [1973] Supp SCR p. 1 referred to. If constituent power ·by itself is so transcendental and excepti.onal as to be above· the provisions of the Constitution itself, it should not, logically speaking, be- bound even by the procedure of amendment in Art. 386(2). [595 Fl The words "sovereignty" and "sovereign power" to describe the constituent power should for several good reasons be avoided, so far as possible by law yers ~ho seek that clarity of thought for which precision in language is the first requircmeni as these terms are "emotive" and vague in character. [596 D-EJ Lord Bryce: Studies in History & Jurisprudence (1901) (503-504); Leonard ;Sclwrpio; Key concepts in Political Science Series @ p. 7; Drcd Scott v. Sandford (1856) 19 How; 393 referred to. The j'udicial and law-making func~ions, however broadly conceiv~d, could not possibly have b~en m~an_t to. be mterchm;ga\Jle. They are not moopable of distinction and d1fferentiahon 1n any constJtutionally prescnbed sphere of operation of power including that of constituent power. [603 F J Ju.dicial Review of all law-making, whether it appertains to the sphere of fundamental law or of ordinary law, is tracable to the doctrine of judicial control by reference to certain basic principles contained in our constituliqn and considered too inviolable .to be easily alterable. One cannot recoonise it so long as the doctrine is found embodied in our constitution (606 H. 607 Al refu&c There is no Article in the American Constitution like Art.l 3 of our constitu tion, which declared any kind of legislation abridging or taking_ myay funda mental rights to be "void". Nevertheless, even there, .the Con>tttut1on, as the ba•sic or fundamental law of the land, was to operate as the touch-stone of the validity of ordinary laws. [607 El Marbury v. Madison 1803, Cranc/1 137 referred to. Under our Constitution, by Article 141 of the Comtitution. power is vested only in the Supreme Court and no other organ or authority of the Republic to declare the law "which shall be binding on all Courts within the territory of India." Articles 32, 136 and 143 of the Constitution of India do vest c·~rtain powers on the Supreme Court of Jndia and Articles 226 and 227, similarly, vest certain powers on the High Courts, including superintendenc-e of the func It is true that there is no mention or tioning of all courts and Tribunals. vesting of judicial power, as such, in the Supreme Court by any Article of our Constitution, but, it c_annot be denied that what wsts in the Supreme Court and High Courts is really judicial power. The Constitution undcuhtcdly sPeci fically vests such power, that is to say, power which can properly he described as ''.judicial power", only in the Supreme Court and in the High Court9 and not in other bodies or authorities, whether executive or legislati,·e, functionit;o under the Constitution. Such a vesting of power in Parliament could not hav~ ' SMT. INDIRA GANDHI V. RAJ NARAIN 38 7 been omitted if it was the intention of Constitution makers to clothe it also A with any similar ju(iicial authority or functions in any capacity whatsoever, [607 E-H, 608 A-BJ The claim therefore that an amalgam or some undifferentiated residue of inherent pow~r, incapable of precise definition ~md including jt?dicial 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 substan tive or procedurai. Attempts are made to infer such a power from mere theory· and speculation as to the nature of the Constituent power" It does not follow 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 Constitu tion. As a matter of correct interpretation of the Constitution, and, even more so, from the point of view of correct theory and principle, from which no practice should depart without good reason, it is highly important. [608 C-E] itself. B c The term "so\'~reign" is only used in till! preamble of our Constitution". The CoJllltitution was actually made by the people of India by virtue of their political sovereignty which enabled them to create a legally sovereign Demo cratic Republic Jo which they consigned or entrusted, through the Constitution, the use of sovereign power to be exercised, in its different forms, by the three 0rgans of Government, each acting on behalf of the whole people so as to serve the object stated in the Preambk. This reference to the "people of Tndia" D It is an asse,11ion, in the basic legal in~tru- is much more than a legal fiction. ment for the governance of this country of the f'act of. a new political power. [609 A-BJ "This Constitution'' It is through each of these organs It has been pointed out, in the Kesavananda Bharati's case that the preamble the American Constitution, "Walk of our Constitution did not, like that of before the Constitution", but was adopted after the rest of the Constitution was passed so that it is really a part of the Constitution itself. Tt means that the Constitution is a document recording an act of entrustment and conveyance E by the people of India:, the political sovereign, of legal authority to act on its behalf to a "Sovereign Democratic Republic". has a basic structure comprising the three organs of the Republic : the Executive. the Legislature, and the Judiciary. the Sovereign will of the People has to operare and manifest itself and not three separate organs of the through only one of them. Neither of these Republic can take owr the function assigned to the other. This is the1 basic structure or scheme of the system of Government of the Republic laid down in this Constitution whose identiy cannot, according to the majority view Kesavananda's case be changed even by resorting to Article 368. The Republic is controlled and directed by the Constitution to proceed towards certain destinations and for certa.in purposes only. The power to change even llhe direc- tion and purposes is itself divided in the sense that a proposed change, if chal lenged 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 resting the correctness or v_alidity of the' measure. This result necessarily follows from our If the judicial power operates here pre>ent Constitutional structure and scheme. like a brake, 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 regimes. 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 feati1re of Democracy. [(\09 C-HJ F G Pro~. Friedman: Law in a changing Society p. 61 (referred to). Inasmuch as the Constitution is the imtrument which regulates the distri bution between and the exercise of sovereign power by the three organs of the H State, and it is there constantly to govern and to be referred to and to be appealed to in any and every case of doubt and difficulty, it could itself, con:eptua:lly, be regarded as the true· or "ultimate" sovereign, that is to say, Sovereign as 3BS SUPREME COURT REPORTS [1976] 2 ·s.C.R. A B c D E F G H compared with "immediate" sovereignty of an organ of the Republic acting with· in its own sphere and at its own level. [610 A-C] . . Ernest Barker : Social & Political Theory. (referred to) · "Sovereignty is. limited bdth by its own nature as well as its mode of action" A theory of a legal sovereignty must necessarily demarcate the sphere of its "legal" or proper operation as opposed to mere use of power either capriciously or divorced from human reason and natural justice. Sovereignty, as recognised by law, is limited both by its own "nature" as well as its "mode of action". There should be no difficulty in accepting such a theory if one can conceive of an ordered system or "Government of laws" as opposed to "Government of men" , , ~ ! placed beyond limitations of this kind, which is implicit in the very idea of a Constitution. Our constitution not only regulates the. operations of the organs of State, but symbolises the unity of the Republic and contains the inspiring hopes and aspirations and cherished goals of all the efforts of the nation. It operntes not merely through law but also on the minds and feelings of the people. [612 C-GJ "' r Bharati's case Supp, [1973] 1 SCR [applied] Any satisfactory theory of sovereignty must account for the power of the people to act in certain ways or to move in certain directions. The will of the people is thus inseparable, from a constitution which enables it- to be expressed and then to govern. The Constitution neither is nor can be sovereign in the It only pres sense that ihe people whd made it cannot unmake it or change to. cribes the correct mode of doing everything, including that of changing the It is only in this sense that it ca~ be sovereign very system of Government. or supreme and rule the life of a nation. [613 D-FJ Willis; Constitution Law of the United States; Willioughby; Fundamental concepts of Public Law (Tago~e Law Lectures) 1924 p. 77; Cooper v. Wends worth Board of Works 1863 14CB (NS) 180. "Placing some limitations on exercise of sovereign power is the esssence of a constitution and the rationale of its existence." No simple theory of sovereignty fits the complex facts of modern life. E·very theory of today, ultimately, rests on concepts more refined than the physical or spiritual might of some ruler, in whom executive, legislative and judicial powers coalesce to take away all legal distinctions between them. Even if that was over the concept of sovereignty anywhere, it was certainly not that of our .constitution makers and it is not ours today. The value of constitutional gov ernment is that it prescribes definite ways in which this sovereign power shall be exercised by the State. The Constitution does place some limitations on exercise of sovereign power. That is the essence of a constitution and the rationable of its existence. [614 C-F] Willoughby : Nature of the State (1928) p. 302, Lester B. Orfield: The Amending of the F!ederal Constitution p. 166. As between the sovereignty of the amending Article and the sovereignty of the Constitution there could be little doubt that lawyers should and would prefer the sovereignty or supremacy of the whole constitution rather than of any part of it. On the face of it, it appears more reasonable and respectable to swear allegiance to the whole Constitut10n, rather to Art. 368 or to the amend ing power contained in it. If there is a part of our constitution which deserves greater devotion than any other part of it is certainly the preamble of our Cons- titution. [615 C-D] , ' Our Constitution, which has been described as the It Nation", was devised as a means to serve needs of the people of the country. has not only the elevating preamble, deserving the allegiance of every rational "Cornerstone of SMT. INDIRA GANDHI V. RAJ NARAIN 38 9 human being, but Part IV of our Constitution, which contains Directive.Princi ples of State Policy'' to guide the future course of state action, Parlicularly It is true. that provisions· of Part IV are not enforceable in the Jegil;lative field. thr9ugh the Courts against the State, but they are declared to be fund~mental in the governance of the country and are used to mterpret the Constttuuon and to fix the meanings of its provisions. From this point of viey; also, the co~· cept of supremacy of the Constitution is, undoubtedly, more sUited to the neeos It not only places the goals towards which nations must march, of <;>ur country. but it is meant to compel our Sovereign Republic, with its three organs of It assumes that each o~gan of Government, to proceed in certain directions. State will discharge' its tmst faithfully. We cannot deny to the Constttnuon that supremacy which is the symbol and proof of the level of our civilisation. [617 A-CJ Ware v. Hylton (1876)3 Dall 199, Dred Scott v. Sandfo,rd (1856) 19 How 393; Gibbus v. Ogden (1824) (9 Wheat p. 1); White v. Heart (1871) 13 Wall 646; Keit/1 v. Clark (1878) 97 U.S. 454; National Prohibition cases (1920) 253 U.S. p. 350; American Constitution (Compared and discussed) "Supremacy of the Constitution is part of the basic structure". The doctrine of supremacy or sovereignty of the Constitution, adopted by this Court in Special Reference No. l of 1964, was declared to be a. part of the basic structure of the Constitution in Bharati's case. The minority, while not specifically dissenting from this view, held that, even what was considered by the majority to be a part of the basic structure, was alterable under Art. 368. But, no judge of this Court has so far held that, without even attempting to change what may be basic structure of the Constitution itself, by appropriate amendments, judicial power could be exercised by Parliament under Art. 368 on the assumption that it was already there. [617 D, G-HJ The theory of the supremacy of the Constitution is inherent in the very concept of the "auguster thing" which lies behind "Parliament or King" and is sought to be embodied in the Constitution of a country. The most proper and appropriate functions· of the amending power in a Constitution, which is also a part 6f the Constitution, and, indeed, its most potent part, is that of making basic changes so as to avert constitutional breakdowns and revolutions, if possi ble. The implied limitations of a "basic structure'', operating from even out side the language of Art. 368, as it stood before the 24th amendment restrict its scope. These limitation~ must, however, be related to and found in the provisions of the cC!nstitution and not outside. [619 D-G] The words "Constituent power" ~re advisedly used in the 24th amendment so as to clarify the position and not to put jn or to include anything beyond constitution making power in Art. 368. (620 Cl ' The constituent power is still bound by the exclusively prescribed procedure to "amend by way of addition, variation or repeal" any provision of' the Consti It is entirely a law making procedure elaborately set out in clause (2) tu,tion. Jn fact, Art. 368 contains so much of the fundamental law mak of Art. 368. ing or legislative procedure that, in Golaknath's case, fiV"e learned Judges' held that it was confined to procedure and did not contain at all the substantive power to amend. Clause (1) of Art. 368 introduced by the 24th amendment. It could was, meant to remove this objection among others, and to do no more. not be intended to put some new amalgam of executive and judicial or quasi judicial substantive powers into it also by some implication so as to do away with the very need for such an elaborate and carefully drawn up constitution such as. ours. The absence of any quasi-judicial procedure, .from the compre hensively fram~d procedural provisions. of Art. 368, seems extremely signifi It indicates that it was the clear intention of constitution makers that no cant. judicial or quasi-judicial function could be performed by Parliament whilst operating in the special constituent field of Constitutional law making. An omission to provide any quasi-judicial procedure in Art. 368. which. apparently furnishes a self-contained code, means that no 5ruch power wa~ meant to be included here _at all. Prqper exercise of judicial power is inseparable from hppropriate procedure. 4-126 S.C.T./76 [620 C-F] A B c D E F G .H I ) "\ \. • ~· .• A B c D E F G H 390 SUPREME COURT REPORTS [ 197 6] 2 s.c.it. The political sovereignty of the people, recognised by the preamble of our constitution, where the people are described as the constitution makers who gave the constitution unto themselves, does not mean that the people retained unto themselves any residue of legal sovereignty. They did not p~escribe, apart from dividing the exercise of sovereign power roughly between the three organs of the Republic, each with its own modus operandi any othe,r or direct method, such as Initiative or Referendum, for exercising their politically sovereign power. The people entrusted to the three. organs of the sovereign Democratic Republic. They constituted the exericse of the three aspects of sovereign power on behalf of the people. This is the only way of reconciling the idea of a sovereign people in the political sense, and the sovereignty of the Republic represented by a legally supreme constitntion, so that the sovereign powers of each of the' three organs of the Republic had to be exercised in conformity with the mandates, both positive and negative, express and implied of the constitution. It would be preferable to describe this concept as one of the "Supremacy of the Constitu tion" instead of "Sovereignty" of the Constitution, because of the theoretical, speculative, and emotive clouds which have gathered arou11d the term sovereignty. [621 A-DJ Tijkayat Sri Govinc:ic.lji Maharaj v. The State of Rajasthan [1964] (1) .SCR p. 561 @ 591, Queen v. Burah 5 I.A. 178; (referred to). "Clause 4 of Art. 329A could not be said to be a valid piece; or Jaw making. · It is true that, in the exercise of the law making constituent power, brought in by s. 8 of the Indian Independenee Act, the legislatures could be armed ·with But, as no if appropriate Jaws w'ere made to that effect. judicial powers law either constitutional or ordinary, was passed, preceding the 39th Amendment, to repeal the Act of 1951 and then to vest a judicial powzr in Parlh\ment, so as to enable it to take over and decide election disputes itself directly Cl.. (4) of Art. 329A by virtue of containing certain provisions or the assumptio'Ql that s_uch a judicial power was already there in Parliament, could not be said to be valid as a piece of law making. [623 E-GJ Art. 105 (3) of the Constitution does not confer on Parliame•it any presumed exercise of judicial power. What was not conferred upon Parliament itself, in its constituent capacity, could not be impliedly assumed to be there by virtue of certain "powers, ,privi leges and immunities which belong separately to each House of Parliament. Such a claim cannot be based upon what is to be derived from Art. 105. This reasoning would, obviously, conflict with the provisions, of Art. 329(b) of the Constitution which indicates that an election dispute can only be resolved by an election petition before a forum provided by an ordinary enactment. [624 C-DJ In exercise of its powers under Art. 329(b), our Parliament had enacted the Act of 19,51. The procedure prescribed by the Act had the binding force of a constitutionally. prescribed procedure. It could not be circumvented un1ess, with reference to cases covered by Art. 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 Art. 105(3), that the prescribed forum shifted to Parliament itself, and that Parliament. in exercise of its constituent function, had both legislated and adjudicated. [624 E-F] Australian Constitution Art. 47 (referred to) Rule of Construction applies to interpretation of the Constitution G1! well. The well recognised rule of construction of statutes, which must apply t~ .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. [624 G-H] ' ( ,. • I ' • - / \ \ 1 ~ ' SMT. INDIRA GANDHI V. RAJ NARAIN 391 Crawford's "Statutory Constructions ( 1940) p. 334 (referred to). A Art. 329(b) excludes the provisions of Art. 105(3). What is separately expressly, and especially provided for by Art. 329(b) must necessarily fall outside the purview of Art. 105(3). Moreover Art. 105(3) contained a temporary provision until o~her provision was made by Parliament in that behalf. Appropriate provisions were enacted by the Act of 1951, in compliance with Art. 329(b), the proper Article for it. 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 Art. 329(A)(4). Again, a purported exercise of power, in enacting Art. 329(A)(4), cou_ld only be a law making power and not any other power which could conceivably fall under Art. 105(3). The required law making power is found in article 368. It would be idle to B [625 D-E] Erskine May: Parliamentary Procedure (18th Edn.) 153-155; Special Refer- ence No. 1 of 1964 [1965] 1 SCR 175; Kielly v. Cc;-son 4 Moore PC 63; C The exercise of the jurisdiction to determine an election dispute, vested in the High Court by the Act of 1951, for al! elections to the House of the Peop]e, in accordance with Art. 329(b), cannot be taken away by a constitutional amendment, purporting to repeal retrospectively the provisions of the Act of 19'51, a piece of ordinary legislation, in their application to a particular class of cases, and making a. simultaneous declaration of the rights of the parties D to a judgment, without first performing a judicial function also, which was not included in the constituent or any other law making power. [629 D-E] [His Lordship thought it nQ.t necessary to pursue the question whether there are any legal !imitations upon the subject matter which may be considered fit for inclusion or incorporation in a constitution, as it was left to the good sense of. the Constitution makers]. [631 DJ , Parliament could not be deemed to have withdrawn the c.ase and decided if. ~gislative action can sometimes be made to serve as an unobjectionable substitute for what could and should strictly and properly be done judicially. The A~t of 1951, enacted under the provisions of article 329(b) of the Consti tution, provided a procedure which could not be circumvented. Despite the impression created by the terms of the declaration at the end or Cl, ( 4) of Art. 329A, it cannot be assumed that Parliament took over a case intn its own hands to decide it and to incorporate the result in the form of Art. 329(A)(4). Parliament could not be deemed to be unaware of the bar created by Art. 329 (b) and the 1951 Act. [631 D-GJ East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] A.C. 109 (referred to.). E F Art. 329(A) 4 is only a piece of purported /aw-making. t Art: 329 (A) (4) is part of. an amendment of the Constitution for _the purposes G found m the statement of ob1ects and Reasons. Only the declarat10n given at the end of it suggests that, in the course of it, the effect upon the case before this, court was considered and dealt .with. [633 F-GJ }· Retrospectivity of Art. 329(A) 4 is valid. Retrospective legislation which does not impair vested or substantial rights or const,itutional prohibitions is permissible. [636 Al Willoughby : Constitution of the United States 2nd Edn. V.ol. 3: Cooley : Constitutional Limitation; MPV. Sundaramier & Co. v. The State of A.P. & Anr. [1958] SCR 1422; Sri Vinod Kumar and Ors. v. State of Himachal Pradesh [,!259] Supp. (1) SCR 160; Jadah' Singh v. The State of Himachal Pradesh and 1l 392 SUPREME COURT REPORTS [1976] 2 S.C.R. ' A B c D E Ors. [1960] (3) SCR 755; Udai Ram Sharma and Ors. v. Union of India anti Ors. [1968] 3 SCR 41; Rustom Cavasjee Cooper v. Union of. jndia and Ors. [1970] (3) SCR 530; Jagannat/z etc. v. Authorised Officer L<tnd Reforms and Ors. etc. [1972] (1) SCR 1055; Atiabari Tea Co. Ltd. & Anr. v. T/1e State of Assam, [1964] (5) SCR 975; Mis. Tirat'iz Ram Rajindranath Lucknow v. State of U.P. & Anr. AIR 1973 SC 405; Krishna Chandra Gangopadhaya etc. v. Tile Union of India and Ors. AIR 1975 SC 1389; Pandia Nad~w mu/ Ors. v. The State of Tamil Nadu (1974] (2) SCC 539; State of Orissa v. B. K. Bose [1962] (Supp.) 2 SCR 380; State of U.P. v. Roja Anand Brahma Shah [1967] (!) SCR 362; Shri Pritlzvi Cotton Mills Ltd. & A nr. v. Broach Borough Municipality & Ors. [1970] (1) SCR 382 @ 392; Jana.pada Sabha, Chindwara etc. v. The Central Provinces Syndicate Ltd & A11r. etc. [1970] 3 SCR 745; Municipal Corporation of the City of Ahmedabad v. New Shorock Spg. and Wvg. Co. Ltd. etc. [1971] (1) SCR 288; State of Tami/ Nadu & Anr. v. M. R. Gounder Am".,. AIR 1971 SC 231; A marjit Kaur and Ors. v. Pritam Singh and Ors. AIR 1974 SC 2068; Qudrat Ullah v. Municipal Board Bareill)'1 AIR 1974 SC 396; A. K. Copa/an v. State .of Ta111il Nadtt [1950] SCR 88 @ 198; S. C. Chose v. King Emperor [1944) FCR 295; John Clm'ke Geot'ge Esquil'e and Sir, Roll:111d Jen nings, Knight 1955 Law Rep. States 4 Eliz~ 2 America~' Jurisprudence; 2nd· Edn. Vol. 46@ 318; Kanta Katlzurla v. Ma11ak Chand Surano [1970] (2) SCR 835. Constitutional validity of amendments in general and 39th Amendment in particular. If the constituent bodies taken separately or together, could be legally sove reign, the constitutional validity of no amendment could be called in question It is well established that it is the Constitution and not the before the Court. constituent power which is supreme here, in the sense that the constitutionalitY of the Constitution cannot be c.alled in question but the exercise of the consti tuent power can be. The validity of exercise of constituent powers have to be judged by testing it on anvil of Constitutional provisions. Courts have to test the legality of Jaws, whether purporting to be ordinary or Constitutional, by the no1'ms laid down in the Constitution. This follows from the supremacy of the Constitution. [640 D-E, GJ J. C. Gray : Nature & Source of Law p. 96 Ke/sen "General Theory of law and State" p. 150 (referred to). "The basic structure of the Constitution tests validity of a constitutional law· an1e11(/Jnent and c•!so ordinary laws : F The basic structure of the Con>titution tests both, viz. the validity of a. constitutional amendment and ordinary laws, because ordinary law making itself cannot go beyond the range of constituent power. [640 GJ The issues whether a majority patty can virtually act as the judge, in an elec tion dispute between itself and the minority parties and whether this amounts to a denial of political justice can only be decided in accordance with objects of the Preamble, by the judiciary. It would be a dangerous precedent to Jay down that they can be. and need be determined n9where at all. That is ·what acceptance of total validity of Art. 329A(4) may mean if it bars this court's jurisdiction to hear and decide such a case on merits. There is no reason why the issue should be termed as· one of "political justice" instead of one olain and simple or elementary justice. [641 A, B, Fl G ".l11risdz'ction cannot be barred by A rt. 329A" Tt is true that the right in an ele,ction petition is a statutory right, created' by the statute u/s 116A· .of the Act of 1951 and it can be taken away retros pectively. But, where this taking away also involves the taking away of the ~ight to be heard by this Court on a grievance, whether justifiable or not that a minority is party is being oppressed by the majority. this court cannot' deny the spokesman of the minority a right to lie heard on merits. Such an issue is ,:onsti*1.1tional and legal and not political. [642 C-D] , \ I SMT. INDIRA GANDHI v. RAJ NARAIN 393 The jurisdiction of this court to consider the different grounds of complaint A does not ordinarily arise at all under Section 1l6A of th~ A_ct of _1951. ~ut, in view of the decision to hear the arguments on the constttut10nal issues raised fo the writ petition in the High Court, the causes of action arising out of the amenqments have become attached to the appeals u/s 116 A of the Act. [643 B-D] T]le effect of clauses (4) and (5) & (6) of Art. 329A would be,_ if ~his <:ourt were to hold that its jurisdiction is barred preventing it from gmng int~ the merits of the appeals under section l 16A of the Act, the appeal also could B not be gone into, and, this; would mean denying an -opportunity also• to the ajlPe1- lant Prime Minister of asserting her rights, under the 1951 Act and of vind1- catfog her stand in the case bv showing that there was really no sustainable :ground what·soever for the findings of the High Court against her. This court would, therefore, be prevented from doing justice to. her case as well a9 if the court were to accept the contention that the Thirty-ninth Amendment bars the Court's jurisdiction to hear the appeals under S<:ction 116A of the Act on merits. 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 a.lleged bar to this Court's jurisdic- It could not be the intention of Parlia- tion if such a Bar be held to b<: there. ment that justice should appear to be defeated. [643 D-F] C "The doctrii1e of political q11csthm" of Art. 329A. Undoubtedly, clause ( 4) of the Art. 329A, could be said to have a political objective, in the context in which it was introduced and this court could perhaps take judicial notice of this context. Even if it was possible to go beyond the ~tatement of objects and reasons and to hold that clause (4) of Art. 329A is there essentially for demonstrating the strong position of the Government and of D the Prime Minister of this country so as to inspire the necessary confidence in and give the necessary political a.nd legal strength to the Government enable it to go forward boldly to deal with internal economic and Jaw and order problems and international question there is no reason why this -could make it necessary to exclude the jurisdiction of this court so as to prevent it from consi• dering a case which would have been over much sooner if the court bad not been confronted with these difficulties. [644 H, 645 A-Bl [His Lordship observed that he failed to see what danger to the countrY could arise or how national interests could be jeopardised by a consideration and a decision by this court of such a good case as the Prime Minister of this coun- try had on facts and law.] [645 CJ E There may be and was som1:. useful political objective. to be served by de monstrating the strength and ability of the Government to face the difficulties lf that be so, clause ( 4) of Art. 329A bad with which it had been conf'ronted. a political objective and its purpose has been served. object behind its enactment, it could not be really to injure the interests of political parties or groups. The context and the political consideratiOns placed F before the court could be relevant in understanding the real meaning of clause ( 4) of Article 329A of the Constitution. [645 C-Dl If that was the Mai:bury v. Madison (1803) 1 Cr. 137, 163 (referred to). kesavana11da Bharati's case [1973] Supp. SCR 1 (relied on). Baker v. Carr 369 U.S. 186, H. H. Malwrajadhiraja Madhay Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India [1971] 3 SCR 9; Raisahib Ram Jawa!'a Kap.ur and Ors. v. State df Punjab. [1955] (2) SCR 225; Jayantilal G Anmtlal Smdhan v. N. Rana [1965] 3 SCR 201; Halsbury's Laws English 3rd Edn. Vol. 7 Art. 409 p. 192 (discussed). , "Maxim" ut res magis valeat quam pereat-lts applicability. It is. well-establishe~ _canon of in~erpretation that, out of two possible in terpreta!Ions of a provisIOn. one which prevents it from becoming unconstitu tional should be preferred if this is possible-Vt res magis valeat quam pereat. [645 El Jt. f~ t_rue that the de~ming provision seems to stand in the way of the court's H exam111at10n of the ments of the case even though there is no dire.ct provision takin~ away !h:e co_urt's ju~isdiction to coi:sicler the merits of the appeals. A deeming provision mtroduc111g a legal action must be confined to the context A B c D E F G H 394 SUPREME COURT REPORTS (1976] 2 'S.C.R. of it and cannot be given a larger effect. A legal fiction is created for some definite purposes and should not be extended beyond its legitimate field deter mined by its coil.text. [645 F-G] Radha Kishan v. Durga Prasad AIR 1940 PC 167; Bengal Immunity Co. Ltd. v. The State of Bihar and Anr. [1955] (2) SCR 603; C.I.T. Bombay v. James Anderson [1964] (5) SCR 590; C.I.T. Madras v. Express Newspapers Ltd. Madras, [1964] (8) SCR 189; Sri Jagadguru Kavi Basara Rajendraswami of Gavimutt v. Commissio11er of Hindu Religious Charitable Endowments Hydera bad [1964] (8) SCR 252, Ex part Walto11 in Re. Levy (1881) 17 Ch. D. 746 (referred to). "Clause (5) of Art. 329A does 11ot bar this Court's Jurisdiction" \ If the purpose of clause ( 4) of Art. 329A was purely to meet the political needs of the country and was only partly revealed by the policy underlying the Statement of reasons and objects it seems possible to contend that it was not intended at all to oust the jurisdiction o·f the Court. Hence Art, 329A; 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). [646 B-C] In the circumstances of this case, it would seem that conformity with the declaration embodied in Article 329A clause (4) is possible if it i~ confined to the meaning and effect of the deeming provision to what was needed only for the declaration to be given at the end of clause ( 4) by the constituent bodies, with a political object, and not for the purposes of affecting this Court's juris diction which was meant to determine the legal effects of what was decided in the Allahabad High Court. The more natural interpretation would appear to be that the deeming provision should apply for "all purposes" including those for consideration of the appeals before this Court. But, if it is not possi ble to decide those appeals without giving a different meaning to the deeming provision, on which the final declaration in claU9e (4) rests and clause (5) leaves this court free to decide bow this court could conform with clause ( 4), this court's jurisdiction ro decide factual and legal issues judicially cannot be said to be taken away absolutely. If the fiction was only a logical step in the proces~ of the declaration to be made by constituent auJhorities for. political purpo~s. but not of this court for legal purposes. The fiction will only attach to the declaration contained at the end of clause ( 4) for political purposes only. f 646 C-EJ "Doctrine of Readifzg down not applied" Perhaps it could be argued, by applying the doctrine of reading down, that clause ( 4) was 11ot intended to oust the jurisdiction of this court altogether to try the case. No such attempts at reading it down have, however, been made in support of the validity of Art. 329A (4). Clause (4) _of Article 329A(4) does not so operate as to bar the jurisdiction of this court to go into and determine the merits of the appeals before this Court by applying the Act of 1951. Even if this Court were to consider matters of expediency and national interest, as it 9hould in appropriate· cases, it does not appear to be either eX" pedient or in conformity with national interests to leave the question in doubt whether the judgment under appeal before this Court could or could not legally stand on its own legs under the unamended law. [646 E-Hl Art. 329A(4) does not stand in the way of the consideration of the appeals before this court on merits under the Act of 1951 or the validity of the amend ments of the Act. [647 A] On Review Application : "Cou11sel's duty while arguing a case" A court is not required, by any rule of natural justice, to intimate to learn ed counsel what particular route or reasoning will finally appeal to a judge or be· adopted by him in reaching a particular cGnclusion in his judgment. If a counsel raises an issue which, in the opinion of a Judge, can only be answered SMT. INDIRA GANDHI V. RAJ NARAIN 395 by 'going into findings of fact, he should anticipate the possibility of such a view. [673 C-D] It may be difficult for learned counsel sometimes to anticipate and meet the requirements of every learned judge of this court when there are live of them hearing a cas~. It is, however, the duty of counsel, who raise issues which. may necessitate consideration of questions of fact and law, to satisfy the require. ments of any one of the judges, who may be of opinion that these issues could not possibly by decided properly without considering findings of fact and the applications of law to them. · [673 F-G] After· holding that the Representation of People Act 1951 was not materially altered, but only explained by most amendments of 1975, consideratidn of merits wu:.voidable : Learned counsel for the election petitioner having stated that he had no further atgument to advance if his submissions on the validity and interpreta tion of amendments of Representation of the People Act, 1951, were not accept· able to the Court, could not urge, on an application for review, that he did not deal with merits because he did not anticipate the view of a learned Judge that the law, as contained in the Representation of People Act, 1951, had not been altered except on one matter. On such· a view, the appeal of the success ful candidate coi.ild not be either fairly or legally disiposed of or allowed with out any consideration of the merits of the case simply because of the election petitioner's counsel's statement presumably in the interests of his client. A con sideration of and decision on merits of the case became imperative in such a situation. [674 E-Hl "Failure to make a particular submis~~on is 1101 a ground for redpening or review of a case." When counsel had ample opportunity to make all his submissions and yet, either due to some D)isapprehension or for some other reason he fails to make any particular sybmission, the case cannot be reopened, particularly when nothing which could possibly affect the result is indicated even in the review application. ·It is high time that it was realized by everyone that courts are not meant for political tactics or propaganda. [67 4 B, C-D] Per. Chandrachud, J. It is beyond Court's jurisdiction to consider whether, the election of a private individual and the disvute concerning it cannot be a matter of constitutional amendment under Art. 368. A B c D E F The alleged objection to the 39th Amendment is that the election of a private individual and the dispute concerning it cannot ever be a matter of Constitutional amendment. Under Article 368 the question touches a totally new dimension of the amending power : Can the Constituent Assembly, while amending the Con e•itution, prpnounce upon private disputes or must it only concern itself with what may be termed orgap.isational matters concerning the country's governance ? The question has the mefi.t of' novelty, but there is no substance in it. It requires to be examined in isolation. that is, divorced from considerations arising from the theory of separation of powers and the aspect whether the amendment constitutes an encroachment on judicial functions and thereby damages one of the basic structures of the Constitution. The reason why there is no wbstance in the G contention is that what the Constitution ought to contain is not for the Courts to decide. The touchstone of the validity of a Constitutional amendment is firstly whether the procedure prescribed by Articlei 368 is strictly complied with and secondly whether the amendment destroys or damages the basic structure of the Constitution. The subject-matter of constitutio.nal amendments is a question ,of high policy and Courts are concerned with the interpretation of laws, no~ with the wisdom of the policy underlying them. The Constitution can be amended so as to provide that wagering contracts shall be void or that bigamous marriages shall be unlawful or that economic offenders shall be visited with a H higher penalty. The Indian Constitution is not like the American Constitution an instrument of few words. The range of topics it covers would bemuse anY student of foreign Constitutions which do not even skirt the problems with which In fact, there is hardly any important our Constitution deals in copious details. , I 396 SUPREME COURT REPORTS [1976] 2 ·s.c.R. A B c D E F G H facet of national life which our Constitution does not touch. Along with matters of high priority like citizenship, Fundamental Rights, Directive Principles of State Policy and the relation between the Union and ~he States, it deals with matters not normally considered constitutionally important like the salaries of high dignitaries, the power of the Supreme Court to frame rules for regulating its practice and procedure, official language for communication between one State and another and last but not the least, elections to the Parliament and lhe S>tate Legislatures. Those to whose wisdom and judgment the constituent power is confided, will evoke scorn and derision if that power is used for granting~ er withdrawing build ing contracts, passing or failing students or granting and denying divorces. But the electorate lives in the hope that a sacred power will not so flagrantly be abused and the moving finger of history warns of the consequenceS: that inevi tably flow when absolute power bas corrupted absolutely. The fear of perversion is no test of power. [656 G-H, 657 A-Fl Elections to legislatures were considered by Constitution makers to be a matter of constitutonal importance. Though the powers of the Prime Minister in a cabinet form of democracy are not as unrivalled as those of the President in the American system it i~ undeniable that the Prime Minister occupies a unique position. The choice of the subject for constitutional amendment cannot, there fore, be characterized as trifling, frivolous or outside the framework of a copious It is wrong to think that elections to the country's legislatures are Constitution. a private affair of the contestants. They are matters of public interest and of national importance. Every citizen has a stake in legislative elections for, his social and economic well-being depends upon the promises and performance of the legislature. Such elections, and more so the election. of the Prime Minis~er who is at least primqs inter pares, can legitimately form the subject-matter of a constitutional provision. The validity of what is brought into the Constitution has to be judged by different standards. [657 G-H, 658 A-CJ Rottscliaefcr on Constitutional Law (Ed. 1939) page 397 (referred to). "Ratio of the. majority decision in Bharati's case and the 1111amendc:•bl~ features." The ratio of the majority decision in Bharati's case is not that ,some named features of the constitution are a part of its basic structure but that the power of amendment cannot be exercised so as to damage or destroy the essential ele ments or the basic structure of the Constitution. Supremacy of the constitution, Republican Democratic form of the Government, Secular character of the Con s!itution, Separation of powers, federalism and dignity and freedom of the indi vidual, the mandate to build a welfare state, unity and integrity of the Nation, sovereignty of India. Sovereign Democratic Republic, Parliamentary Democracy. the three organs of the· State and judicial Review are mere illustrations of what constitutes the basic structure according to Bharati's case. [658 C-E] If there be beyond the pale of reasonable controversy any unamendable features of the constituti'on on the score that they form a part of the basic structure of the 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 sha!l be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion and that (iv) The nation ~hall be governed by a Government of Laws, not of men. These are the pillars of our const!tu tional philosophy, the pillars therefore of the basic structure of the Constitu tion. "Basic Struc!ure" by the majority judgment, is not a part of the funda-· mental rights nor indeed a provision of the constituti.on.. The theory of ha.sic structure is woven out of the conspectus of the constitution and the amendmg power is subjected to it because it is a constituent power. "The power to amend the fnndamental instrument cannot carry with it the power to destroy its essen. tial features". This brief is the arch of the theory of basic structure. [659 B-C, 670 B-CJ Kesavananda Bharati v. State of Kera/a, [1973] Supp. S.C.R. 1 (explained). The Preamble of the co11stit11tion does not hold the key to its be.sic structure and is neithe.r a source nor a /imitation df Power". The view that the preamble of the Constitution holds the t.ey to its basic structure or that the preamble is too holy to suffer a human touch is not correct - " I • - ' SMT. INDIRA GANDHI V. RAJ NARAIN 397 Preambles of the Constitution9 are metaphysical like slogans and are intended . A primarily to reflect the hopes and aspirations of resonate the ideal which the' Nation seeks to achieve, the target and not the achievement. Though our preamble was voted upon and is a part of the Constitution it is really "a preliminary statement of the reasons" which made the )Jass.tog of the Constitution neceS>Sary and desirable. The preamble of our conslltution cannot [659 D·G} therefore be regarded as a source of any prohibitions or inhibitions. !•he people; ' H. M. Seervai Constitutional Law o'f India 2nd Edn. 19,75 p. 76:; Halsbury's Laws of En!iland 3rd Edn., p. 370; Willoughby : Constitutional La>v; Attorney GeneraA v. Prince Emest Augustus of Ilanorer [1957] A.C. 436, 463; Jn re: Bembari Union & Exqhange of Enclaves (Referred to). "Judicial Review cannot be considered ti} be a part of the basic structure so .tar as le11islative elections are concerned". The fundamental premise of the argument that judicial power is a part of the basic structure and since the 39th Amendment by Arts. 329A(4) and (5) deprives the courts including the Supreme Court of their power to adjudicate upon the disputed election the amendment is unconstitutional, is too broadly stated because the Constitution, as originally enacted, expressly <;xcluded Judi· cial Review i'n a large variety of important matters. Each of the provisions of Art. 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a), shows that the Consti tutio_n· did not regarg judicial review as an indispensable measure of. t~e legality or propriety of every determination. Even in a vital matter perta1mng to the election for membership of the Parliament the framers of the Constitution had left .the decision to the judgment of the Executive through Art. 103 (I) and 103(2) and 329(b). Under Art. 329(b). it was open to the legislature to ·]eave. the adjudication of election disputes to authorities other than thes·2 in the hierachy of our judicial system. The decisions of these tribunals could even tually be brought before the Supreme Court under Art. 136( 1) of the consti tutidn, but it is at least, plausible that were. the legislatures to pass laws leaving the decisions of election disputes to themselves, judicial review might have stood excluded~ Since the Constitution, as originally enacted did not consider that judicial power must intervene in the interest of purity of elections, judicial re view cannot be considered to be a part of the basic structure in so far as Jegis· lative elections are coricemed. The theory of Basic Structure has to be con sidered in each individual case, not in the abstract, but in the context of the concrete problem. The problem here is whether under our constitution, judi cial review was considered as an indispensable concomitant of elections country's legislatures. The answer,plainly is "no". [660 A-H, 661 A] B c D E The contention that Arts. 329(A)(4) and (5) are unconstitutional on the ground that by these provisions the election of the Prime Minister is placed beyond the purview of courts cannot be accepted. [661 Fl F Erskine May: Parliamentary Practice 18th Edn. p. 29,; Halsbury'> Laws of England 3rd Edn. Vol. 14 p. 250, 324; American Cons~itution Art. 1 sec. V. Clause ( !.) Leste~ Jayson "The Constitution of tl1e U.S.A." (referred to). Constitution of India Art. 31(4), 31(6). 103(1), 103(2), 136(2), 227(4), (considered). 262(2), 327, 328, 329(a), (b). "Clauses (4) mid (5) o1 Art. 329(A) i11trnd11ced by 39th Amendment are not in total derogatio'n of Po/iticifll Justice ond hence Constitutional". \ The concept of "Political Justice" of which the Preamble to the Constitution of India speaks is too vague and nebulous to permit by its yardstick, the invali' dati.on of a constitutional amendment. There is no substance in the contention 1ba·: the relevant clauses of the 39th Amendment are in total derogation of "polL tiC>tl justice" and are accordingly unconstitutional. [661 G.l Clauses (4) and (5) of Art. 329(A) inserted hv the 39th Amendment do not damage or destroy democratic structure of the Constitution. -· , - \ . I • I i ' G H ' .. • 398 SUPREME COURT REPORTS [1976] 2 ·s.c.R. The contention that "Democracy" is an essential feature of the Constitution is unassailable. If the democratic form of government is the corner-stone of our constitution, the basic feature is the broad form of democracy that was known to our Nation, when the constitution was enacted, with such adjustments and modifications as exigencie~ ·may demand, but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic: doctrine and no one can suggest that a rule is authoritarian because some rights and safeguards. avail· to the people at the inception of its constitution have been abridged or ab· rogated or because, as the result of a constitutional amendment, the form of Government does not strictly comport with some classical defrnition of though The needs of the Na ti on may call for severe abne&ation, concept. never the needs of the Rulers and evolutionary changes in the fundamental law do not necessarily destroy the basic structure of its Government. What does the law live for, if it is dead to living needs ? [661 H,. 662 A-DJ An answer to the question whether the provisions contained in Articles 329A ( 4) and (5) are destructive of' the democratic form of government lies in the comparison between the pre 39th Amendment period and the post 39th Amend~ ment period in the context of our constituti'on. The substance of the matter is the rule of the majority and the manner of ascertaining the will of the majority is through the process of elections. 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. In fact it is through that process t.hat the electorate expressed its preference for the appellant over the respondent. Articles 79, 80, 81, 100(1), 105 and 326 unimpair ed as they remain even after the 39th amendment are enough assurance that the Parliament is not leading the country to a totalitarian path. The impugned provisions do not destroy the democratic structure of our government. [662 E, 663-B-C, D-El Max Radin: "A restatement of Honfold" Harvard Law Review (1938) Vol. 51, P. 1141, 1145; C.F. Storng; "Political Constitutions" E.L, B.S. (Ed. 2 Impression 1970) p. 172; Tennyson "Poems"; Sir Frederick Pollock "Essays in Jurisprudence 'Essays & Morals' 303; Constitution of India Art. 79, 80, 81 100(1), 105 & 326 (considered). "Provisidns of Art. 329(4) are outright negation of the right of equality con ferred by Article 14". The 39th Amendment is, however, open to grave objection on other grounds, insofar as clause (4) and (5) of Article 329A are concerned. Generality and equality are two indelible characteristics of justice administered according India to law. The preamble to our constitution by .which the people of resolved solemnly to secure to all its citizens equality of status and opportunity finds its realization in an ampler· measure in Article 14 which guarantees equality before the law and the equal protection Of laws to all persons, citizens and non. citizens alike. Equality is the faith and creed of our Democratic Republic and without it, neither the constitution nor the laws made under it could reflect the common conscience of those who owe allegiance to them. And if they did not, they would fail to commandi. respect and obedience without which any constitu tion would be doomed to founder on the rocks of revolution. A constitution which, without a true nexus, denies equality b.efore the law to its citizen may in a form thinly disguised contain reprisals directed against private individuals in matters of private rights and wrongs. [663 H, 664 A-Cl A B c D E F G Sir Frederick Pollock "Ethics and Morals (Essays in Jurisprudence) p. 303 Sir Frederick Pollock "Jurisprudence & Legal Essays" (1960) p. 195. H Article 329(a) (4) which makes the existing election laws retrospectively inapplicable in a wry substantial measure, to the Parliamentary elections of the Prime Minister and the Speaker, creates a legal vacuum. The plaiD intendment and meaning of Clause ( 4) is that the election of the tw~ .personages will be beyond the reach of any Jaw, past or present. These prov!Sl:ins are .an outright negation of the right of equality conferred by Art. 14, a nght which .. SMT. INDIRA GANDHI V. RAJ NARAIN 399 me re than any other is a basic postulate of our constitution. It is true that the right, though expressed in an absolute form, is hedged in by a judge .made restriction that it is open to the Legi~lature to make a reasonable classification so that the same law will not apply to all persons alike or different laws may govern the rights and obligations of different persons falling within distinct cla:ises. [664 D-E, G] ·,Plato's "Politicus" p. 294 quoted in Edmond Cahn "The sense of justice" (19~) p. 161 (referr~d to). "Clauses ( 4) & ( 5) of Art. 329A are arbitrary and are calculated to damage or destroy the Rule of Law." A B That the classification must be fo-unded on an intelligible differenth which distinguishes those who are grouped together from those who are left c ~ot and th<.t the differentia must have a rational relation to the object sought to be achieved by the particular law flows from the principle of equality. The first test may be assumed to be satisfied, since there i> no gainsaying that in our the Prime Minister occupies a unique position as a system of Government, "Primus inter pares." But what is the nexus of the uniqueness with which provides that the election of the Prime Minister and the Speaker to the Parliament will be above all laws, that the election will be governed by no norms or standards applicable to all others who contest the efection and that an election declared to be void by a High Court judgment shall be deemed to h0 valid, the judgment and its finding;; being themselves required to be deemed to be void ? Such is not the doctrine of classification and no facet of that doctrine can support the favoured treatment accorded by the 39th Ame;idment to the D high personages. the common man's sense of justice which sustains democracies and there is a fear that the 39th Ari1endment, by its impugned. part, may outrage that sense of justice. Different rules may apply to different condi- tions and classes of men and even a single individual may, by his uniqueness, form a class by himself. But in the absence of differentia reasonably related to the object of the law, justice must be administered with an even hand to an. [665 B-E] It is · C State of Bengal v. Anwar Ali Sarkar, [1952] S.C.R. 284, (applied). "The "Rule of law" means that the exercise of powers of government >hall be conditioned by law and that suoject to the exceptions to the doctrine of equality, no one shall be exposed to the arbitrary will of the Government. It has been said in lighter vein, to show the supremacy of the Parliament, that the charm of the English constitution is that"'it does not exist". But our con stitution exists and must con!inue to exist. Jaw and the equal protection of laws to everyone. The denial of such equality as modified by the judicially evolwd theory of classification is the very negation It follows that clauses ( 4) and (5) of Article 329(A) are of rule of lii.w. arbitrary and are calculated to damage or destroy the Rule of Law. [665 G, 666 D-El It guarantees equality before E F A. V. Dicey "Constitutional Law"; S. A. de Smith "Judicial of Admin istmtlve Action (1968) p. 5; Wade & Phillips; Constitutional Law (6th Edn.) p. 70-73; (reforred to) G Separation of Powers, principle of-Whether the 39th Amendment is invalid on the ground that it abrogates the principle of "Separation of Powers". The argument directed at showing the invalidation of the 39th Amendment on the ground that it abrogates the principle of "separation of powers" replete with many possibilities since it has several side lights. Unlike American and Australian Constitutions which are rigid, ail Indian constitution Hi does not expressly vest the three kinds of power in three ditrerent organs of the State. But the principle of "separation of powers" is not a magic· formula for keeping the three organs of the State within the strict" confines of their functions. [666 E, 667 C-Dl A :C F •G .H 400 SUPREME COURT REPORTS. (1Q76) 2 S.C.R. Granville Austin : The Indian Constitution : Corner-stones of a Nal.ion p. 186. Panama Refining Co. v. Ryan 293 U.S. 388 @ 410; In re : Delhi La11•s Act [1951] S.C.R. 747, 964. (Considered). The existence and the limitations on the powers of three departments ot governm~nt are due to the normal proces~ of specialisation in governmental busi ness, which becomes more and more complex as civilisation advances. The legis lature must make Jaws, the executive enforce them and tlie· judiciary interpret them because they have in their respective field, acquired an expertise which makes them competent to discharge their duly appointed J'unctions. The poli tical usefulness of the doctrine of separation of powers is now widely recognis ed though a satisfactory definition of the three functions is difficult to evolve. But the function of the Parliament is to make laws, not to decide cases. The reason for this restraint is not that the Indian Constitution recognises any dgid separation of powers. Plainly it does not. The reason is that the concentra tion of powers in any one organ may, by upsetting that fine balance between th,e th~ee organs destroy the fundamental premises of a democratic government to which we are pledged. [667 E-F, 668 A-CJ - Sir Carleton K. Allen "Law and Orders" 1965 Edn. p. 8 ·Madison: "The Federalist"; Paton: Text Book of Jurisprudence (1964) p. 296. (referred to). No constitution can survive without a conscious adherence to its fine check' and balances. Just as courts ought not to enter into the problems entwined in the "Political thicket", Parliament must also respect the preserve of the .courts. Courts have, by and large, come to check their valourous propensities. Jn the name of the constitution, the Parliament may not also turn· its atten tion from: th•e important task of legislation to deciding court cases for which If it gathers facts, it gathers tacts it lacks the expertise and the apparatus. of policy. If it records findings, it does so without a pleading and without framing any issues. And worst of all if it decides a court case, it decides without hearing the parties- and in defiance of the fundamental principles of natural justice. [668 G-H, 669 A-Bl Julius Stone: '"Social Dimensions of Law & Justice (1966) P. 668. (referred to) In the instant case, the Parliament by clause ( 4) of Art. 319A. has, decided . Neither more nor a matter of which the country's courts were lawfully seized. It is true, that retrospective validation is a well known legislative process less. which has received the recognition of this Court in tax cases·, pre-emption cases. tenancy cases and a variety of otlier matters including four election cases. But in all these cases, what the legislature did was to change the Jaw retrospectively so as to remove the reason of disqualification, leaving it to the couris to apply the amended Jaw 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 frt the context of our cooperafive federalism w.hich contains no rigid distribution of powers but which provides a system of salutary checks and balances. (669 B-El Harold Laski : "Grammar of Politics"; Kanta Kathuria v. Manak Chand Surc•na [1970] 2 SCR 835 (referred to). It is contrary to the basic tenets of our constitution to hold that the Amend ing body is an amalgam of all powerS-legislative, executive judicial. "Whatsoever pleases the emperor has the force of law" is not an article of democratic fai"th. The basis of our constitution is a well planned legal order, the presuppositions Qf which are accepted by the people as determining methods; bv which the'.functions of the Government will be discharged and the power of the State shall be used. [669 F-G] ''Elertion Laws (Amendment Acts) are valid", Bharati's case is not an authority that ordinary legislation must also answer to the same test as a con stitutidnal cJ1swer. The tlzeorv of basic structure is wlwilv nut of place in matre1'.~ relating 101 validities oi 01·dinary laws made under the constltutidn!' I SMT. INDIRA GANDHI V. RAJ NARAIN 40 1 ( i) The argument regarding the invalidity of the Representation of People (Amendment) Act 58 of 1974 and of the Election Laws (Amendment Act, 1.97 5) has, however no substance. [669 G] (ii) The Constitutional Amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from !he pnn cipl'e that a case is only an authority for what it decides it does not logically follow from the majority judgment in Bharati's case, that ordinary legislation must aho answer the same test as a constitutional amendment. Ordinary Jaws have to answer two tests for their validity; ( 1) The law must be within the legislative competence of' the legislatlire as defiRed in Chapter I Part XI of the Constitution and ( 2) it must not offend against the provisions of Articles 13 ( 1l and (2) of the Constitution. "Basic structure'', QY the majority Judgment is not a part of the fundamental rights nor indeed a provision of the Cons!itution. The theory of basic structure is wholly out of place iu matters relating to the validity cf ordinary Jaws made under the Constitution. (669 G-H, 670 A-CJ There is no paradox that the higher power should be subject to a limitation, which will not operate upon a lower power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legiSlature of not Jess than one, half of the States as provided bv Art. 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations. [670 C-Dl \ ) No objection can accordingly be taken to the constitutional validity of the imrugned Acts on the ground that they damage or destroy the basic power to pass these Acts could be exercised retrospectively structure. The . as n!uch as prospectively. [670 E] ~ "R(presentation of the People Amendment Act 58 of 1974, makes the issue of expu:sl!s incurre(l by the political party ccaden1ic.'' The expenses incurred by the political party together with the expenses in curred by the appellant are not shown to exceed the prescribed ceiling. Apart from that, Act 58 of 1974, makes that issue academic. (670 G] "Vaiidity of Co11stit111io'11 (Thil'fyni/l/h Amendment) cannot be challenged nn the ground that a number of members of Parliamelit were in detention and were prcrented fron1 taking de/iQercl/ions in tile Parlia1nent." Tk ·e is no' merit in the contention that the Constitutional amendment is bad because it was passed when some members of the Parliament were in deten-· tion. The legality of the detention orders cannot be canvassed in these appeals collater21ll'. 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 net have made a difference to the passing of the Amendment. (670 H, 671 Al Argumems of Respondem No. 1 (Defeated Candidate) (1) Th·~ :l9ih Amendment affects the basic structure or the framework of It destroys the identity of the Consti the Con-titution adopted by the constitution and amend'nQ power conferred by Art. :168. tutian. i9, therefore, beyond (2) Separation of powers is a basic feature of the Constitution and, there fore, c,ery dispute involving the adjudication of legal rights must be left to the decision of the judiciary. Clause four of Art. 329A iniroduced by the 39th Amendr;-:ent takes away that .iurisdiction and is, therefore, void. (3) The function of the legislature is to legislate and not decide private In the instant case the constituent assembly has transmitted its con dispute,. stitutional functions by adjudicating upon a private dispute. ( 4) Democracy is an essential feature of the Constitution. Free and fair election' are indispen5able for the successful workin!I of any democratic Govern ment by providi,ng that the election of the Prime Minister shall not be open to A c D E F G H 402 SUPREME COURT REPORTS [1976) 2 S.C.R. A challenge and shall continue to be val.id despite the judgment of the Allahabad High Court; holding that the election is vitiated by corrupt practices, the consti tuent assembly has destroyed the very core of democracy. B c E' F G (5) Equality is an essential feature of a republican Constitution. The 39th Amendment .puts the Prime Minister and the Speaker above the law and beyond . the reach of the equality principle. The classification made by the· 39'i'h Amend. ment bears no nexus with the sort of the immunity grahted to too high per sonages from the operation of election laws. , (6) The rule of law and judicial review are also basic features of the Consti tution. To freeze certain persons from the constraints of law and to place their conduct beyond the judicial review is to destroy the identity of the Constitution. No freedom is secured without the court to protect it. The organic balance between the three branches, the legislature, the executive and the judiciary is upset by eroding the authority of the Supreme Court in the vital matteVi like el('.9tions and the rule or law is abrogated by providing that the election of the Prime Minister shall continue to be valid and will be open to no challenge before any other authority whatsoever. (7) The concept of political justice recognised by the preamble is Yiolated by the 39th Amendment. The Constitution can always be subverted by revolu tionary methods. The question is whether it is permissible to the Parliament to use the legitimacy of the constitutional provisions for effecting revoluticnary changes. (8) The .constituent power partakes of legislative power and can only be exerciS't)d within the highest ambit of the latter power. Therefore, even With a 2/3rd majority of the constituent body cannot exercise executive or judicial power for example, the power to appoint or dismiss a Government servant or the power to declare war which are executive powers cannot be exercised by the constituent assembly. Similarly, it cannot be in the guise of amending the Constitution provided that an accused arraigned before the criminal court shall be acquittl;)d and shall be deemed to be innocent. The Constitution body can make changes in the conditions of the exercise of judicial power but it cannot usurp that power and lastly (9) The question in Fundamental Rights case was whether Parliament can in the exercise of its powers of amendment abridge or take away Fundamental Rights and whether there are any foherent or implied limitations on the Parliament powers of amendment. · question was whether the power of amendment can be exercised so as to destroy or mutilate the basic structure of the Constitution. The Fundamental Rights case did not involve the consideration of the question as to what the power of amendment comprehends. Promoting and demoting Gov~rnment servants passing and failing students who have appeared in an examination granting or withdrawing building contracts but not the least declaring whc ha~ won and who has Jost an election are matters clearly outside the scope of the• amendi.,g power under Article 368 which means and implies the power to alter the Funda mental instrument of country's governance. Jn other words, Arguments for the constitutional validity of the 39th Amendmelll : For the Appellants by A. K. Sen : (1) The amendment follows well-known pattern of all validation Act3 bY which the basi9 or judgments or orders of competent courts and tribunals is changed and the judgments arid orders are made ineffective. (2) The effect of validation i's to change the law so as to alter the basis of any judgment. wbich might have been given on the basis of old law and, thus, to make the judgment ineffective. ~ (3) A forn1al declaration that the judgment rendered under the old Act is void is not necessary. If the matter is pending in appeal, the Appellate court has to give effect to the altered law and reverse the judgment. If the matter is not pending in appeal then the judgment ceases to be operative and binding as res judicata. 1 L I SMT. INDIRA GANDHI V. RAJ NARAIN 403 (4) The rendering of a judgment ineffective by changing its basis b):' legis· lative enactment is not an em;roachriient on judicial power but a legtsJation within the competence of the Legislature rendering the basis of the judgment non· est. (5) The constituent power has retrospectively changed the law in so far as it relates to election. The constituent authority could have left the applica~ tion of the changed law either to Parliament or to any other body. But, it has chosen fr,, assume the duty of determination in thi~ particular case for itself. • (6) The determination of election disputes and the validity of elections is not an exercise of judicial power. This function may be left either to courts properly so called or to tribunals or to other bodies including the Legislature itself. (7) The rigid separa.ion of powers as it obtain in the United States of America and in the lesser degree under the Australian, Constitution does not apply to India. Many powers which are strictly judicial have been excluded from the purview of the courts. Therefore, no question of any separation of powers being involveJ in matters concerning elections and election petitions. (8) There is no question of separatiOn of powers when the constituent authority exercises either a power which is allocated to the legislature or to the Executive or to the judiciary under the Constitntioh. In the hands of the constituent authority there is no demarcation of powers. But, the demarcation emerges only when it leaves the hands of the constituent authority through well. defined channels into demarcated pools. The constituent power is independent of the fetters or limitations imposed by separation of powers in the hands of the organ~ of the Government amongst whom the supreme authority or State is allocated. (9) The constituent power springs as the fountain head and partakes of sovereignty and is the power which creates organs and distributes the power. Therefore, in a sense, the, constituent power is all embracing and is at once judicial, executive and legislative. It is in a sense a supreme power. (I 0) Even if' the preamble Jays down as its objective, the 39th Constitution amendment do~s not violate the said concept. of equality as the same is based on a rational classification and has a reasonable nexus with the object of the amendment. (11 ). The preamble to the Constitution only refers to securing "equality of status nnd opportunity". Equality of status and opportunity has· got manY facets. Some of these facets are guaranteed as Fundamental Rights under Article 14 to l 8 of the Constitution. These facets alone can be considered to be basic features of the Constitution assuming that equa!itv was a basic feature of the Constitution. - ·· (12) "Free and fair election" does not postulate that there must be a constitutional provision for determining election disputes by a separate tribunal or court. (13) The 39th Amendment does not affect the structure of a republic demo· cracy assuming that the sam~ is a basic feature of the Constitution. The vali dation of one election does not alter the character of the democrncy. (14) A constitutional amendment need not necessarily be the structural erga nisation of the . State. A B c D E F G Shri Jaganath Kaushal supported the argument of Shri Sen by citing prag matic· Hlustrations. He gave interesting statistics showing that from very smaJl percentage of election petitions succeed eventually which is evidenced with such petitions are used by defeated candidates as an instrument against a successful candidate. Parliament, therefore, wanted to save high personages from such harass·mertt. A law may benefit a single individual and may still be valid. The judgment of the A11ahabad High Court became a nullity by reason of that Court ceasin!( retrospectively to have jurisdiction over the dispute and a judg· It can even challenged in a men! which is a nullity need not be set aside. collateral JJroceedings. r H 4 0-1 SUPREME COURT REPORTS (1976] 2 ·s.C.R. A Arguments of the Allomey General: (I) The majority decision in the fundamental Rights case is not an autho rity for the proposition ·that there could be no free or f'air elections without judicial review. The Constitutions and laws of several countries leave the deci sion of election disputes to the judgment of the legislatures themselves. The history of the Representation of the People Act, 1951 as also various articles in our Constitution show that judicial review can be excluded in appropriate (2) ·That validation of elections is a process well cases as a matter of policy. ( 3) That a law may be constitu known to democratic forms of Government. tional even if it relates to a single individual if on account of special reasons, the sirrgle individual could be treated as a class by himseli'. (4) That it is clear from rn·ticles 326 and 327 of the Constitution that the Constitution-makers thought that as a matter of high policy elections ought to be dealt with by the Constitution itself and not by ordinary legislation passed within the framework of the Constitution. How much of elections should be dealt with by the Consti tution and how much should be relegated to ordinary legislation is not a matter for the courts to decide. Jf the constituent body thought that the offices of the Prime Minister and the Speaker are important eno\!.iUi to be dealt with by the Constitution itself' in the matter of their elections to the Parliament, it cannot be said that the dech;ion is frivolous or without jurisdiction; and that (5) The contention tbat the 39th Amendment is not an exercise of cdnstituent power should not be allowed to be taken up· because every possible aspect of the matter was argued in Sankari Prasad's case, Sajjan Singh's case and the Funda mental Rights case. The basic question involved in these cases was as to what is the meaning of the word 'amendment'. The argument now is that there is If it is .the same question and. has a further limitation on the amendin_g power. been de>ided, it cannot be reopened by saying that the question has a, new aspect which was not considered then. Ti' the question is new, the principle of Funda mental Rights case cannot be extended any further. Therefore, the constituent power must be held to be a plenary power on which the only limitation is as regards the inviolability of the basi·c .structure. Arguments of the Solicitor General: ( 1) Article 14 is founded on a sound public policy recognised and follow ed in all civilised States. The exclusion of judici'al review does not by itself' mean !he negation of equality. Article 3 lB which on the face of it denied equality to different sections of the community attained the ideal of economic justice by bringing about economic ~quality. ~rticle 33 aJs.o shows that the demands of public problems mav reqmre the ad1ustment of Fundamental Rights for ensuring greater equality. (2) What a Constitution should contain depends on what permanencv is intended to be accorded to a particular provision includ ed in the Constitution (3) Exclusion of Judicial Review is at least permissible in those fields where originally the Con.stitution did not provide for or contem (4) Tf the election law does not apply. as it ceases to plate judicial revfow. applv ·by virtue of arti~le 329A(4l. it.is the £'unction of the legislature to declare whether or not a narhcular elect19n 1s good or bad: and that the Rule of Law is not " part of the basic structure of the Constitution and apart from article J 4. our Constitution recognises neither the doctrine of equality nor the Rule of Law. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 887 and 909 of 1975. Appeals from the judgment a'.id order dated the 12th June, 1975 of the Allahabad High Court in Election Petition No. 5 of 1971. A.' K. Sen, .T. N. Kaushal. D. P. Singh, .T. B. Dadachanii. R. H. Dhebar, Madun Gujadlwr, S.C. Agarwal, Yogeshwar Prasad, H.K. L. Blwgat, Sudhir Bera, K. P. Bhandari and Mrs. Anjali K. Verma for the Appellant (In C.A. No. 887175) and for Respondent No. 1 (In CA No. 909 /75) . B c D E F G H ' .. f , . I I. -- • .... .,. . .I r . SMT. INDIRA GANDHI v~ RAJ NARAlN '(Ray, C.J.) 405 Shanti Bhushan J. P. Goyal, R. C. Divivedi, R. C. Srivastava Pranab Chatterji; s.'s. Khanduja, E. C. Agarwala, C. K. Ratnaparkhi, M. C. Gupta, T. N. Parwal, U. N, R. Rao, C. K. Garg, B. Soloman, K. C. Dua, Raghunath Singh and Sripal Singh for the Appelfant (In CA No. 909175) ·and for Respondent N~. 1 (In C.A. No. 887175). Niren De, Attorney General of India, Lal Narain Sinha, Solicitor General for India and Dr. V. A. Said Mohammad, R. N. Sachthey, P. P. Rao, Miss Sumitra Chakravarty and S. P. Nayar for the Attorney General of India. , · The following Judgments were delivered RAY, C.J.-In Civil ·App~al No. 887 of 1975 the appellant is respondent is Raj Narain. Civil Indira Nehru Gandhi and the Appeal No. 909 of 1975 is the cross objection of the respondent . 0,1 14 Jnly, 1975 it was directed that both the appeals would be heard together. The appeals arise out of the judgment of the High Court of Allahabad dated 12 June, 1975. The High Court held that the appellant held herself out as a candidate from 29 December, 1970 and was guilty of having committed corrupt practice by having ob tained the assistance of Gazetted Officers in furtherance of her elec tion prospects. The High Court further found the appellant guilty of corrupt practice committed under section 123(7) of the Represen tation of the People Act, 1951 hereinafter referred to as the· 1951 Act by havmg obtained the assistance of Yashpal Kapur a Gazetted . Officer for the furtherance of her election prospects. T.he High Court held the appellant to be disqualified for a period of six years from the date of the order as provided in section 8(a) of the 1951 Act. The High Court awarded costs of the election petition to the respon- dent. · It should be stated here that this ju_dgment disposes of both the appeals. Under directions of this Court the original record of the High Court was called for. The appeal filed by the respondent with regard to Issues Nos. 2, 4, 6, 7 •and 9 formed the subject matter of cross objections in Civil Appeal No. 909 of 1975. The cross ob jections are t® same which form grounds of appeal filed by the respondent in the High Court at Allahabad, against an order of dis missal of Civil Misc. Writ No. 3761 of 1975 filed in the High Court at Allahabad. The Constitution (Thirty-ninth Amendment) Act, 1975 conl"ains three principal features. First, Article 71 has been substituted by a new Article 7L The new Article 71 states that subject to the pro regulate any visioas of the Constitution, Parliament may by law matter relating to or connected with the election of a President or Vice-President including the grounds on which such election may be questioned. · The second feature is insertion of Article 329A in the Constitu tion. Clause 4 of Article 329A is challenged in the present appeals. There are six clauses in Article 3 29 A. The first clause states that subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause (1) of Article 102] no election to either House of Parliament of a person who holds the office S-L126 SCI/76 ' A B c D G H 406 SUPREME COURT REPORTS {1976] 2 s.c.R. A B c D E F G H of Prime Minister at the time of such election or is appointed as Prime Minister after such election; and to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election, shall be called in question, except before such authority (not being any such authority as is referred to in clause (b) of Article 329) or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such elec tion including the grounds on which such election may be questioned. Under the second clause the validity of any such law as is referred to in clause ( 1) and the decision of any authority or body under such law shall not be called in question in any court. The third clause states that where any person is appointed as Prime Minister or, as the case may be, chosen to the office of Speaker of the House of the People, while an election petition referred to in Article 329 (b) in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pend ing, such election petition shall abate upon such person being appoint ed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in dause ( 1). The fourth clause which directly concerns the present appeals states that no law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewill1, shall apply or shall be deemed ever to have applied to or in relation to the ekction of any such person as is referred to in clause ( 1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such elec tion could be declared to be void under any such law and notwith standing any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. The fifth clause states that any appeal or cross appeal against any such order of any court as is referred to in clause ( 4) pending imme diately 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 sixth clause states that the provisions of this Article shall have effect notwithstanding anything contained in the Constitution. The third feature in the Constitution (Thirty-ninth Amendment) Act is that in the Ninth Schedule to the Constitution after Entry 86 and before the Explanation several Entries No. 87 to 124 inclusive are inserted. The Representation of the People Act, 1951, the Repre sentation of the People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are mentioned in Entry 87. ' ' • • f ... 1 SMT. lll!DIRA GANDHI v. RAJ NARAIN (Ray, C.J.) 407 The respondent contends that the Representation of the People (Aniendment) Act., 1974 and the Election Laws (Amendment) ~ct, 1975 referred to as the Amendment Acts, 1974 and 1975 do not enJ~Y constitutional immunity because these Acts destroy or damage basic .structure or basic features. In view of the challenge by the respondent to validity of the Amendment Acts, 1974 and 1975 notice was given the Attorney General. the constitutional The appeals were to be heard on 11 August, 1975. In view of the Constitution (Thirty-ninth Amendment) Act, 1975 which came existence on 10 August, 1975 the hearing was adjourned till 25 August, 1975. The constitutional validity of clause ( 4) of Article 329A falls for .consideration. Clause ( 4) of Article 329A is challenged on grounds. First, it destroys or damages the basic features or basic structure of the Constitution. Reliance is placed in support of contention on the majority view of 7 learned Judges in His Holiness Kesavananda Bharati Sripadanagalavaru v. State of Kera/a and Another(1). It should be stated here that the hearing has proceeded on assumption that it is not necessary to challenge the majority view in Kesavananda Bharati's(<1) case. The contentions of the respondent .are these : First, under Article 368 only general principles governing the organs of the State and the basic principles can be laid down. An .amendment of the Constitution does not contemplate any decision in ce&pect of individual cases. Clause ( 4) of Article 329A is said to be exercise of a purely judicial power which is not included in the consti ·tuent power conferred by Article 368. . Second, the control over the result of the elections and on the ques tion whether the election of any person is valid or invalid is vested in the judiciary under the provisions of Article 329 and Article 136. The jurisdiction of judicial determination is taken away, and, fore, the democratic character of the Constitution is destroyed. T~ird, th~ A~endment destroys and abrogates the principle of It 1s said that there is no rational basis for differentiation equahty. between persons holding high offices and other persons elected Parliament. Fourth, the rule of law i& the basis for democracy and judicial review. The fourth clause mak~s the provisions of Part VI of the Representation of the People Act inapplicable to the election of the Prime Minister and the Speaker. Fifth, clause ( 4) destroys not only judicial review but also separa tion of power. The order of the High Court declaring the election to be void is declared valid. The cancellation of the judgment is denial of political justice which is the basic structure of the Constitution. t The second ground is that the constitution of the House which It two Houses passed the Constitution (Thirty-ninth Amendment) Act is illegal. is said that a number of members of Parliament of the - - - - (1) [1973] Supp. S.C.R.1. A B c D E F G H ' • . J . ; 408 - [19761 2 s.c.R. SUPREME COURT REPORTS . . were detained by executive order after 26 June, .1975.. These persons were not supplied any grounds of detention or given any opportunity of making a representation against their detention. Uniess the Presi dent convenes a session of the full Parliament by giving to all members thereof an opportunity to attend the session and exercise their right of speech and vote, the convening of the session will suffer from ille gality and unconstitutionality and cannot be regarded as a session of the two Houses of Parliament. The mere fact that a person may be deprived of his dght to move any court to secure his release from such illegal detention by means of a presidential order under Article 359 does not render the detention itself either legal or constitutional. The important leaders of the House have been prevented from participa tion. Holding of the session and transacting business are unconstitu· tional. Under the first ground these are the contentions. The Constitu tion Amendment affects the basic structure of institutional pattern adopted by the Constitution. The basic feature of separation of powers with the role of independence of judiciary is changed by deny ing jurisdiction of this Court to test the validity of the election. The essential feature of democracy will be destroyed if power is conceded to Parliament to declare the elections void according to law under which it has been held to valid. This is illustrated by saying that Parliament can· by law declare the election of persons against pre dominant ruling party to be void. If the majority party controls the legislature and the executive, the legislature could not have any say as to whether t.he executive was properly elected. Free and fair elections are part of democratic structure and an election which has been held to be invalid for violation of the principles of free and fair elections and by commfasion of corrupt practices is validated. The basic struc ture of equality is violated by providing that those who hold office of Prime Minister and Speaker are above law although election laws were there. The persons who will hold the office of Prime Minister and Speaker have been free from those laws and they are not under rule of law and there is no judicial review with regard to their elections. t The nature of the constituent power is legislative. The constituent power cannot exercise judicial power. Exercise of judicial power or of a purely executive power is n9t power of amendment of the Consti tution. The Constitution may be amended to change constitutional provisions but the constituent power cannot enact that a person declared to be elected. The consequence of change of law may be that the decision given by a co_urt under the law as it stood will not stan<l. The respondent contends that judicial review is an essential feature of basic structure because of the doctrine of separation of powers for these reasons : Judicial review is basic structure in the matter of elec tion to ensure free, fair and pure election. In the American and the Australian Constitutions the judicial power of the State is located in the judiciary. There is no such provision in our Constitution. The Executive, tbe Legislature and the Judiciary are all treated under our Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our Constitution . is dealt with by Articles under th« Heads of the Union Judiciary and the State Judiciary. Under B c D E F G H I ----- .. t • .. &MI. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 409 Article 136 any Tribunal or Court is amenable to the jurisdiction of A this Court. The corollary drawn from this is that if under clause ( 4) of article 329A of the Thirty-ninth Amendment the power of judicial review is taken away it amounts to destruction of basic structure. In England formerly Parliament used to hear election disputes. In 1870 Parliament found that because of political factions it would be better to leave the task of deciding controverted elections to Judges. B Pariiament delegated its power of deciding controverted elections to Courts. Under the English Law the Courts hear and make a report to Parliament. In America each House shall be the eleclions, returns and qualifications of its own Members. That Article 1 Section 5 of the American Constitution. In Australia any question of a disputed election to either Horise, shall be determined by the House in which the question arises. Under the German Federal C Republic Constitution the legislature decides whether a person has lost his seat. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. judge of E The view of Story on the American Constitution is that the power to judge elections, returns and qualifications of the members of each House composing the legislature is to be lodged in legislature. Story says that no other body can be so perpetually watchful to guard D its own rights and privileges from infringement (See Story page 585). In Corpus Juris Vol. 16 (1956) it is said that the judiciary can not exercise powers which are to be found in the other two depart ments of Government which are normally legislative or powers which are generally executive in their nature. All ma.tters relating to or affecting elections are political questions and, as such, are not ques- tions for the judiciary. All matters relating to or affecting elections are, in the absence of controlling constitutional or statutory provisions to the c0ntrary, political questions and, as such are, not questions for the judiciary. So, subject to express constitutional restrictions, all matters relating to the holding of elections and determining results, including contests are political questions (pp. 691, 692; 710). In Corpus Juris Vol. 29 (1965) it is stated that under constitu- tional provision conferring on the "legislature the power to determine by law, before what authority, and in what manner the trial of con- . tested elections shall be conducted, the legislature is given broad power. A constitutimial provision authorising the legislature to provide for the mode of contesting elections in all cases not otherwise specifically provided for in the Constitution itself confers on the legislature ade quate authority to provide for all election contests and to determine G where and by what means election contests shall be conducted. The right to contest an election is not a common right. . Elections belong to the political branch of the Government, and, in the absence of the special constitutional or statutory provisions, are beyond the controi of the judicial power. (Sections 245, 246). A contested election case is a proceeding in which the public is interested, since it is for the public good. An election contest is not merely a proceed- ing. for the adjudication and settlement of the private rights of rival cla~mat~ts to an office. Tt is the public interest, not the parties' claims, which 1s the paramount legislative concern (Section 24 7). F H A B c D E G H 410 SUPREME COURT REPORTS [1976] 2 'S.C.R. In America disputed elections are decided by the Legislature. In Taylor v. Beckham(<!) the American Supreme Court held that a deter is a mination of an election contest for the office of the Governor In Truman H. Newberry v. political question and is not justiciable. United States of America(2) the American Supreme Court held that In David S. Barry v. the manner of elections can be controlled. United States of America Ex. Rel. Thomas W. Cunninggham( 3 ) decision of the American Supreme Court in Charles W. Baker v. Joe C. Carr( 4 ) was referred to in order to find out as to what aspects of elections would be justiciable and not a political question. In Baker v. Carr (supra) the delimitation of constituencies was held to be a justiciable issue. exclusion of an elected representative because of his statement attack ing the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction of the Legislature to find out whether a member was sincere in regard to his oath of Jn Adam Clayton Powell v. John w:- McCormack(6) the disqualificatioll' by the House of a Congressman on the basis of qualification on ground which was not in the Constitution was held to be justiciable. The Federal District Court has jurisdiction over the subject matter of controversies arising under the Constitution. The conferment of power on each House in Americ<t to be a judge of elections is an exclu- . sive ground of power and constitutes the House to be the sole and ulti mate Tribunal. In Julian Bond v. James 'Sloppy' Floyd( 5 ) legislature. The American decisions show that if the House claims additionaI power to disqualify a member on the ground other than those stated in the Constitution _judicial review against disqualification would be available. In Bond's case (supra) disqualification was on an un constitutional ground that his statement on Vietnam policy was a mat ter of free speech and expression. The court did not decide an election dispute but as a custodian of judicial power judged whether the House was acting within its power. Parliam~nt itself can also hear election disputes. That was the English practice until the Grenville Act, 1868 when Parliament con ferred power on courts. Before 1770, controverted elections were tried by the whole House of Commons as party questfons., The House found that the exercise of its privilege could be submitted to a Tribunal constituted by law to secure impartiality in the administration of justice according to the laws of the lan,d. House in the trial of controverted elections was transferred by statute to the courts of law. The present procedure is contained English Representation of the People Act, 1949. The trial is con fided to judges selected from the judiciary. ProviSfon iS made in eaclr case for constituting a rota from whom these judges are selected. The House has no cognizance of these proceedings until their determina tion when the judges certify their determination, ill writing, Speaker, which is final to all intents and purposes. Trial is not a pro ceeding of the House. The judges are to make a report in any case - - - - - - - - Jn !868 the jurisdiction of (!) 44 L. Ed. 547. (3) 73 L. Ed. 867. (5) 17 L. Ed. 2d 235. (2) 65 L. Ed. 913. (4) 7 L. Ed. 2d, 663, (6) 2J L. Ed~ Zd 491. ' • - I • - I • SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 411 Where charge has been made in the petition of corrupt and illegal practice. Provision is also made for the trial of a special case. All certificates and reports of the election court are entered in the Journals of the House. Under section 124 (5) of the English Representation of the People Act, 1949, it is the duty of the House to make orders for carying the determination of the judges into execution. Judicial review in many matters under statute may be excluded. In rnauy cases special jurisdiction is created to deal with matt(lrs assigned to such authorities. A special forum is even created to hear election disputes. A right of appeal may be conferred against such decision. If Parliament acts as the forum for determination of elec tion disputes it may be a question of parliamentary privilege and the courts may not entertain any review from such dec~sions. That because the exercise of power by the Legislature in determining dis puted elections may be called legislative power. A distinctidn arises between what can be called the traditional judicial determination by· ·courts and tribunals on the one hand and the peculiar jurisdiction by the legislature in determining controverted elections on the other. The legal order is a system of general •and individual norms con nected with each other according to the principle that law regulates its own creation. Each norm of this order is created according to the provisions of another norm and ultimately according to the provisions of the basic norm constituting the unity of this system, the legal order. A norm belongs to a certain legal order, because it is created by an organ of the legal community constituted by this order. Creation of law is application of law. The creation of a legal norm is normally an application of the higher norm, regulating its creation. The applica tion of higher norm is the creation of a lower norm determined by the higher norm. A judicial decision is an act by which a general norm, a statute, is applied but at the same time an individual norm is created binding one or both parties to the conflict. Legislation is creation of law. Taking it into account is application of law. The higher norm may determine the organ and. the procedure by which a lower norm and the contents of the lower norm are created. For a norm the crea tion of which is not determined at all by another norm cannot belong to another legal order. The individual creating a norm cannot be considered the organ of the legal community, his norm-creating func tion cannot be imputed to the community, unless in performing function he applies a norm of the legal order constituting the com munity. Every law-creating act must be a law applying act. It must apply a nnrm preceding the act in order to be an act of the legal 0rder or the community constituted by it. When settling a dispute between two parties a court applies a general norm or statutory or custo mary law. Simultaneously, the court creates an individual norm pro· viding that a definite sanction shall be executed against a definite indi vidual. The individual norm is related to the general norm as the statute is related to the constitution. The judicial function is thus like legislation. both creation and application of law. The iudicial func tion is ordinarily determined by the general norms both as to proce dure and as to the contents of the norm to be created, whereas legis· lation is usuallv determined by the constitution only in former respect. A B c D E F G H 412 SUPREME COURT REPORTS [1976] 2 s.c.R. A B c D E F G ,H The general norm which attaches abstractly determined conse quences, has to be applied to concrete cases in order that the sanction determined in abstract may be ordered and executed in concrete. The two es5cntial elements of judicial functions are to apply a pre-existing general norm in which a certain consequence is attached to certain conditions. The existence of the concrete conditions in connection with the concrete consequence arc what may be called individualization of the general and abstract norm to the individual norm of the judicial decision. The contention is that the constituent power is . an exercise in legislative process. The constituent power, it is said, can exercise legislative as well as judicial and executive powers. It is said that if a legislation can validate a matter declared invalid by a judgment the constituent power may equally do so. Special emphasis is laid on Article 102 ( 1) (a) of the Constitutiot,1 which is amended by the Constitution (Thirty-ninth Amendment) Act. Article 102(1) (e) speaks of disqualification by certain laws. The constitutional amend ment seeks to amend Article 102 and remove the disqualificutidn. in the case of the Prime Minister a111d the Speaker. Reliance was placed on the decisions in Abeyesekera v. Jayabilake(1) and Piare Dusadh & Ors. v. The King Emperor(') tllat an ameindment is supportable to invalidate a judgment. Abeyesekera's case (supra) is an authority for the proposition that the legal infirmity can be removed and active indemnity can be passt:d to relieve from penalties incurred. In Piare Dusadh's case (supra) the Special Criminal Courts (Re- peal) Ordinance, 1943 which conferred validity and full effectiveness on sentences passed by special courts which functioned under Special Criminal Courts Ordinance, 1942 was challenged. \v>as It argued in Piare Dusadh's case (supra) that the 1943 Ordina'ace at tempted to exercise judicial power. The Federal. Court did not accept the contenti0n on the ground that in India the legislature has enacted laws providing that suits which had -been dismissed on a particular view of. the law must be restored and retried. Our Federal Court said that Parliament simply takes up· certain determinations which exist in fact, though made witllout autllority, and prescribes not that they shall be acts done by a Board of Review, but that tlley shall be treated as they would be treated if tlley were such acts. The sections do not constitute an exercise of the judicial power. The legislature had not attempted to decide the question of the guilt or innocence of any of the accused. The question had as a matter of fact been decided ·by tribunals which were directed to follow a certain judicial procedure. · Our Federal Court held that once the decisions of the special courts were held void for want of jurisdiction the legislature created those special courts a•ad authorised them to try cases and pass sentences. The legis1'ature gave jurisdiction to the courts to pass the sentences. The Ordinance did not exercise any judicial power because the sentences in due course were subject to an appeal and review by the regular courts of the land. or [1932] A. c. 260. (2) [1944) F.C.R. 61. ' • ' _. • • SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 413 The power of the legislature to validate matters which have been found by judgments or orders oLcompetent courts and Tribunals to be invalid or illegal is a well-known pattern. The legislature validates acts and things done by which the basis of judgments or onlers of competent courts and Tribunals is changed and the judgments and orders are made ineffective. All the Sales Tax Validatiua cases, the election validation cases ure illustrations of that proposition. The present appeals are not of the type of providing indemnity against penalties or determining existing facts to be treated in accordance with change of law. The effect of validation is to cha1age the law so oas to alter the basis of any judgment, which might have been given on the basis of old law and thus make the judgment ineffective. A formal declara tion that the judgment rendered under the old Act is void, is not If the matter is pending in appeal, the •appellate court necessary. has to give effect to the altered law and reverse the judgment. The rendering of a judgment ineffective by changing its basis by legisiative enactment is not an encroachment on judicial power but a legislation within the competence of the Legislature rendering the b•asis of the judgme'at non-est. If a competent court has found that a particular tax or levy has been imposed by a law, which is. void because the legislature passing the law was not competent to pass the law, then the competent legislature hoas validated the tax or levy by a validation Act involving a reenactment of the invalid law. Where the competent legislature has passed a law which is contrary to any of the Funda mental Rights in Part III of the Constitutio1,1 and the law has been declared void by 'a competent court, the appropriate legislature has passed a retrospective law validating the actions taken under the old invalid law by curing the defects in the old law so as to make the new law consistent with Part III of the Constitution. Where invalid elections declared by reason of corrupt practices hoave . beea validated by changing the definition of corrupt practices in the Representation of the People Act, 1951 retrospectively the (See Kanta Kqthuria v. original judgment is rendered ineffective. Manak Chand Surana(l) Our Federal Court in Basanta Chandra Ghose v. The King Em peror(2) dealt with the validity -and effect of Ordinance No. 3 of 1944. One of the objects of that Ordinance was to enact a presump tion in the Ordinance itself in favour of detention orders to preclude their being questioned in courts of law and to take away or limit the · power of the High Court to make orders under section 491 of the Criminal Procedure Code. . The third object of the Ordinance was challenged on the grou',1d thoat section 10(2) of the Ordinance which provided that if at the commencement there is pending fa. any Court a~y proceeding by which the validity of an order having effect by VIItue of section 6 as if it had been made under . this Ordinance is called in question, that proceedrag is hereby discharged. Section 10(2) of the Ordinance was challenged on the ground that this woas It was said in abrogation of judicial power by legislative authority. (1) [1970) 2 S.C.K 830. (2) [1944] F.C.R. 295 A B c D E F G H ':\ J ) I • • • ,. • ' A B c 0 414 SUPREME COURT REPORTS (1976] 2 ·s.C,R. that the. legislative authority on.ly passed t~e law and the disposal of the particular case could remam the funct10n of the court. Section 10(2) of the Ordinance w~s. said not to leave it tq the court to apply the rule. of law lo the dec1s10n of cases but to discharge all pendin§ proceedmgs. Our Federal Court noticed the distinction between a legislative act and the judicial act, and said "a directio\1 such a pro ceeding is discharged is clearly a judicial act and not an enactment latter Ordinance of l~w". In Piare Dusadh's case (supra) ~rov1ded that .t~e decisions of the earli~r Tribunals which were nega tived by a dec1s10n of the Federal Court should be treated as decisions of duly constituted Tribunals. That was held not to constitute a judicial power by the Ordinance making authority. In Basanta Chandra Ghose's case (supra) the Federal Court held section 10(2) ?f the Ordinance to be a direct disposal .of cases by the legislature itself. Basanta Chandra Ghose's case (supra)· was decided on the ground that the section in the Ordinance discharged the proceedings. There was nothing left to the Court. Counsel on behalf of the resoondent contended that the constitu ent power could deal with amendments of the Constitution, but could not exercise constituent power in relation to validating an election. Judic:·al Review is one of the distinctive features of the American Constitutional Law. based on the concept of due process of law. These features are not in our Constitution. In America equal protection of the laws E F G H In Bond's case (supra) the House claimed additional power to disqualify a member on grounds other than those stated in the Consti It was conceded there as it will appear at page 244 of the tution. Report that judicial review against the disqualification decreed by the House would be available if a member was excluded on racial ground or other unconstitutional grounds. The House claimed that ground on which Bond was disqualified was 111ot an unconstitutional ground. The court held that there was no distinction between a disqualification decreed by the House on racial grounds and one al leged to violate the right of free speech. The court concluded that Bond was deprived of his constitutional rights guaranteed by the First Amendment by the disqualification decreed by the House. This was not a case of deciding an election dispute by the House and the Court sitting on appeal on the decision of the House. This is a case where a disqualification was imposed on unconstitutional grounds, thereby ·affecting the fundamental rights of Boi1d. This is not an authority for the proposition that the decision of the House on an election dis pute would be open to judicial review. The case of Powell v. McCormack (supra) is also one of disquali fication by the House of a Congressman on the basis of qualification In which the House added to those specified in the ConstitutiO'n. other words, the House purported to unseat a member by disqualify ing him on a ground not given in the Constitution. This was net a case of deciding an election dispute. Under_ the statute in question the Federa[ District Court had jurisdiction over all civil action where controversy arises uader the Constitution. This was a case entertain- I ) SMT. INDIRA GANDHI V. RAJ NARAIN (Ray; C.J..) 41 5 ed on the ground that exclusion of a member of the House was un comtitutional. This case is an authority for the proposition that if a power is committed to a particular organ, the court cannot adjudi cate upon it. Where a power is exercised by one organ, which is not committed to that particular orga!1 of the State and such exercise of power is violative of a constitutional provision the matter becomes cognizable by courts. The Court held that a question of unconstitu tional exclusion of a member is not barred from judicial review as a political question. Judicial review is not to be founded on any Article simifar to the Jn the Australian Constitution also the jµdi American Constitution. cial power is located in the court. The doctrine of separation of _powers is carried into effect in countries like America, Australia. In our Constitution there is separation of powers in a broad sense. But the larger question is whether there is any doctrine of separation of powers when it comes to exercise of constituent power. The doc trine of separation of powers as recognised in America is not appli (See Delhi Laws Act( 1 ), Jayantilal Sodhan v. cable to our country. F. N. Rana('), Chandra Mohan v. State of Uttar Pradesh & Ors.( 3 ) •and Udai Ram Sharma and Ors. etc. v. Union of India & Ors(4) The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the courts. The whole subject of election has been left to cc;urts · traditionally under the Common Law and election disputes and matters are governed by the Legislature. The questioln of the determination of election disputes has particularly been regarded as a ~pecial pri:-rilege of Parliament in England. It is a political question m the U\11ted States. Under our Constitution Parliament has in herited all the privileges, powers and immunities of the British House of Commons. In the case of election disputes Parliament has defined the proced~re by law. It can at any time change that procedure and take_ over 1tsel~ the whole question. There is, therefore, no questio·n in matters concerning of a~y separation of powers being involved elect10ns and election petitions. When the constituent power exercises powers the constituent judicial powers. All power comprises legislative, executive and powers flow from the constituent power through the Constitution to the various departm_ents or heads. In the hands of the constitueiat authority there is no demarcation of powers. It is only when the constituent authority defines the uuthorities or demarcates the areas that separation of power is discussed. The constituent power is in dependent of the doctrine of separation of powers. The co~1stituent power is sovereign. It is the power which creates the organs and distributes the powers. (1) [1951] S.C.R. 747 at 965-66. (2) [1964] 5, S.C.R. 294. (3) [1967] 1 S.C.R. 77 at 87. (4) [1968] 3 S.C.R. 41 at 67. B. c D E G H \ • 416 SUPREME COURT REPORTS (1976] 2 S.C.R. A B c U G H The constituent power is sui generis. lative power. The position of un-limited law making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power. It is different from Ja Article 329A an exercise of judicial power is the question for In legislative processes there may be judicial process. determination. If the legislature has to fix the amount or lay down the principle for fixation of amount the question will arise as to whether this is exer- cise of judicial power. The determination of the amount will involve judicral procedure. When the legislature determines the amount the fixation of amount is purely by legislative process. But in doffig so the legislature takes into account factors relevant to individual pro- perties. Every organ of the State has to ascertain facts ·which make the foundation of its own decision. The executive usually collects its materi•als through its departments. The judiciary acts in a field where there are two or more parties before it and upon evidence placed before it, pro1aounces its verdict according to principles of natural justice. The legislature is entitled to obtain information from any . source. The legislature may call witnesses. The rule of Audi Alteram Partem is not applicable in a legislative process. Legisla tion is usually general. It may sometimes be for special reasons an individual case. There is no doubt that the constituent power is not the same as legislative power. The distinctlo<a between constituent power and legislative power is always to be borne in mind because the constituent power is higher in norm. Judicial review in election disputes is not a compulsion. Judicial review of decisions in election disputes may be entrusted by law to If it is to a Tribunal or to the High Court the a Judicial Tribunal. judicial review will be attracted either under the relevant law pro viding for appe•al to this Court or Article 136 may be attracted. Under Article 329(b) the contemplated law may vest the power to entertain election petitions in the House itself which may determine the dis pute by a resolution after receiving a report from a special Committee. In such cases judicial review may be eliminated without involving amel11dment of the Constitution. The Constitution permits by amend ment exclusion of judicial review of a matter if ii is necessary to give effect to the Directive Principles of State Policy. A similar power may be available when such exclusionis needed in the larger interest In either case the exclusion of judicial of the security of the State. It only review does not mean that principles of equality are violated. means that the appropri'ate body making t_he law satisfied itself and determi'iles conclusively that principles of equality have not _been violated. That body conclusiveJy makes classification for the purpose It is said that in this class of of applying the principles of equaHty. cases the answer to the question of the validity of the cl>assification rests on factors to which the court has no access and the materials may be of highly confidential nature and the decision has to be on If judicial review is excluded the court a matter of political necessity. is not in a position to conclude that principles of equality have been violated. ' ' SM'r. INDIRA GANDHI v. RAJ NARAlN (Ray, C.J.) 417 J Equality of status as ·well as equ:ility _of opportunity is a fund~­ mental rightin Artieles 14 and 16 of the Constitution. It also means equality before law and equal protection of the laws. Equality is spoken in the ~re-amble. The:e is liberty to legislat~re. to cl~sify .to establish equality. When Articles 31A and 31B elmunated JUd1c1al review the meaning was not that the legislature would go 0'11 discrimi nating. The task of classification can be· left to the legislature. It is the very nature of legislation. that classification must be in public interest. The amending body has excluded judicial review in Articles 31A, 31B and 31C. Exclusion · of the operation of the equality pdaciple from some fields is constitutionally possible. Article 33 excludes judicial review ~rticle 262(2) excludes in matters relating t<;> the Armed Forces. jurisdiction of courts in water disputes. Decisions in election disputes may be made by the legislature itself or may be made by courts or tribunals on behalf of the lature or may be made by courts and tribunals on thei: own_ exercising is worked judicial functions. The concept of free and fair election out by the Representation of the People Act. The Act provides a definifam of "corrupt practice" for the guidance of the cotirt. In making tlle law the legislature acts on the concept of free and In any legislation relating to the validity of elections the election. concept of free and fair elections is an important consideration. In the process of election the consept of free . and fair election is worked out by formulating the principles_ of franchise, and the free exercise In cases of disputes as to election, the concept of free of fraachise. 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, as contend ed for by the respondent. Some people may advocate universal franchise. Some people may advocate proportional representation. Some people may advocate educational qualfiication for voters. Some people may advocate property qualifications Instances can be multipled on divergence of views in regard to qualifications for voters, qualifications of members, forms of corrupt practices. That is why there is law relating to and regulating elections. for voters. Clause ( 4) in Article 329A has done four things. First, it has wiped out n~t merely the judgment but also the election petition and the law relatmg thereto. Secondly, it has deprived the right to raise a dispute about the. validity o_f the .election by not having provided another forum. Thtrd, there is no Judgment to deal with and no rig~t or dispu~e t<? adjudicate upon. ~ourth, the constituent power of 1.ts own legislative 1udgment has validated the election. At the outset it has to be noticed that constituent power is not !he san1~ as ordinary law-ma~ing power. On behalf of the appellant tt was nghtly contended that 1f any amendment of Article 102(1) (a) of the Constitution had to be made, it had to be made by amendment of the Constitution. The matter does not rest there. c D E F G If no law prior to the Constitution (Thirty-ninth Amendment) Act will apnly to election petitions or matters connected therewith result is that there is not only no forum for adjudication of election H \ 418 SUPREME COURT REPORTS [1976] 2 'S.C,R. disputes but that there is also no election petition in the eye of law. The insurmountable difficult is in regard to the process and result of validating the election by clause ( 4). Two answers were given on be half of the appellant. One was that the validation of the election is itself the law. The other was that the constituent power applied its own norms to the election petition. Both the answers are unacceptable. The election petition itself did not have any existence in law there was no petition which could be looked into by the constituent power. If there was no petition to look into it is difficult to comprehend &S to what norms were applied to the election dispute. The dispute has to be seen. The dispute has to be adjudicated upon. Clause ( 4) suffers from these infirmities. First, the forum might If the constituent be changed but another forum has to be created. power became itself the forum to decide the disputes the 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 accordance with law. Parliament has power to create law and apply In the present case, the constituent powers did not have the same. any law Lo 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. lt is true that no express mention is made in our Constitution of vesting the judiciary the Judicial power as is to be 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 Lhe Judic;iary. Similarly, the Executive and the Legislature a:re vested with powers Judicial power has lain in the hands of the Judiciary in their spheres. 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 sub to hear ject to the Constitution. Parliament may create election disputes. Parliament may itself hear election disputes. Whichever body will hear election disputes will have to apply norms. Norms ar~ legal standards. There is no discrimination if classifica tion on rational basis is made for determination of disputes relating to perso:1s 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 110t by itself discrimination. The changes introduced to the 1951 Act apply to all. Clause 4 of Article 329A in the present case in validating law. The election has passed a declaratory judgment and not a legislative judgment in clause 4 is an exercise of judicial power. The constituent power can exercise judicial power but it has to apply law. B ·C 0 F G H \ • i ' I • I 1 SMT. INDIRA GANPHI v. RAJ NARAIN (Ray, C.J.) 419 The validation of the election is not by applying Nor can it be said that the validation of election in clause 4 norms set up by the constituent power. legal norms. is by Clause 5 in Article 329A states that an appeal against any order of any court referred to in clause 4 pending, before the comrnence .ment 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 conformity with the provisions of clause 4 inasmuch as the valida tion of the election cannot rest on clause 4 . Jn view of the conclusion tjlat the appeal cannot be disposed of in conformity with clause 4, it is necessary to hear the appeals on other grounds in accordance with the provisions of the 1951 Act and Amendment Acts, 1974 and 1975. A B c The second contention of the respondent is that the session of the Lok Sabha and the Rajya Sabha is invalid for these reasons. If the Executive illegally and unconstitutionally detains any person detention affects the validity of the proceedings. A number of members of Parliament of the two Houses, namely, the Lok Sabha and the Rajya Sabha were detained by executive orders after 26 June, 1975 and before the summoning of a session of the two Houses of D Parliament. Parliament commenced the session on 21 July, 1975. None of the members of Parliament were either supplied any grounds representation of detention or given any opportunity to make any summon a session of Parliament issued the Presidential Order under Article 359 of the Constitution on 27 June, 1975. The right of the detained members of Parliament to move any court for the enforce- ment of their fundamental right under Article 22 of the Constitution was taken away by the executive order of the President who became .a party to the unconstitutional and illegal detention of the members of Parliament by preventing them from securing their release. . against their detention. The President who was the authority E The constitutional position of the two Houses of Parliament governed by the provisions of Articles 79 and 81 of the Constitution. F The respondent contends that unless the President convenes a session of the Full Parliament by giving to all members thereof an opportu- nity to attend the session and e_)(ercise their right of speech and vote, the convening of the session will suffer from illegality and unconstitu tionality and cannot be regarded as a session of the two Houses of Parliament. Any business transacted in a session of such truncated House cannot, therefore, be regarded in law as a session of a House. G The mere fact that a person who is under unconstitutional and illegal detention may be deprived of his right to move a court secure his release from such illegal detention by means of a Presiden- tial Order under Article 359 is said by the respondent not to render the detention of a person either legal or .constitutional, and, therefore, such a detenm must be provided an opportunity to participate in the proceedings of the House. It is emphasised by the respondent that when important leaders of different parties are unconstitutionallv prevented from participating in the session of the House, a sessio~ 11 A B c D E F G H 420 . SUPREME COURT REPORTS· ~1976] 2 ·s.c.R . cannot be held for deliberations in which different members influence If in the holding of the views of others by their own participation. a session and in transacting business therein, the provisions of Constitution are not complied with, this is said to amount to illegality or unconstitutionality and not a mere procedural irregularity within the meaning of Article 122(1) of the Constitution. right of The essence of the respondent's contention is that the participation of some members of the House of Parliament proceedings of Parliament under Article 105(3) of the Constitution has been interfered with. When a member is excluded from parti cipating in the proceedings of the House, that is a matter concerning Parliament and the grievance of exclusion is in regard to proceedings within the walls of Parliament. In regard to rights to be exercised within the walls of the House the House itself is (See May's Parliamentary Practice 18th Ed. pp. 82-83, 12 Q.B.D. 271 at 285-286). judge. In Bradlaugh v. Gossett(!) Bradlaugh claimed to make affirma tion instead of taking the oath. He was permitted to make tlie affir mation "subject to any liability by statute'', and took his .seat. Upon an action for penalties it was decided, finally by the House ot Lords, ' that Bradiaugh had not qualified himself to sit by making the atfirma-· tion. On re-election, he attempted to take the oath, but was pre vented by order of the House which eventually directed the Serjeant to exclude him from the House until he undertook to creale no fur ther disturbance. Bradlaugh then brought an action against Serjeant in order to obtain a "declaration that the order of the House was beyond the power and jurisdiction of the House and void, and an order restraining the Serjeant at Arms from preventing Bradlaugh by force from entering the House". It was held that the Court had no power to restrain the executive officer of the House from carrying out the order of the House. The reason is that the House is not subject to the control of the Courts in the administration of the inter nal proceedings of the House. If an outside agency illegally prevents a member's participation the House has the power to secure his presence. In 1543 Ferrers a mem ber was arrested in London. The House, on hearing of his arrest, ordered the Serjeant to go to the Compter and demand his delivery. The Serjeant was resisted by the city officers, who were protected by the sheriffs. The Commons laid their case before the Lords. They ordered the Serjeant to repair to the sheriffs, and to require the deli very of Ferrers without any writ or warrant. The Lord Chancellor had offered them a writ of privilege but they refused it. The sheriffs in the meantime had surrendered the prisoner. This practice of releas ing Members by a writ of Privilege continued but no writ was to be obtained. The present. mode of releasing arrested members goes back In 1603 Shirley was imprisoned in the Fleet, Shirley's(2) case. execution, before the meeting of Parliament. The Commons tried to bring him into the House by habeas corpus, and then sent the (1) 12 Q.B.D. 271. (2) 1 Hatselt, 157. \ ' • • • • I I ~ I • • • .. ·~ 4 SMT. INDIRA GANDHI v. RAJ NARAIN (Ray, C.J.) 421 Serjeant to demand his release. The warden refused to give up his prisoner. At length the warden delivered up the prisoner. ·An Act 1 James l, c, 13 was passed, which while it recognised the privilege of freedom from arrest, the right of either House of. Parlia ment to set a privileged person at liberty, and the right to pumsh those time as who make or procure arrests, enacted that after such privilege of that session in which privilege is granted shall cease, In 1700 an f\.ct was pass.e.d parties may sue and execute a new writ. which while it maintained the privilege of freedom from arrest with more distinctness than the Act 1 James 1 c. 13, made the goods of privileged persons liable to distress infinite and sequestration, between a dissolution or prorogation and the next meeting of Parliament, and during adjournments for more than fourteen days. The composition of Parliament is not dependent on inability of a merhber to. attend for whatsoever reason. The purpose of Article 85 is to give effect to the collective right of the House which represents the nation to be called as often as the situation demands, and in any case the interval between two sessions must not exceed six months. Assuming a conflict were to arise between the privileges of a member under Article 105 (3) and the functions of the House to assemble under Article 85 the privilege of the member will not prevail. The detention of members of Parliament is by a statutory authority in the exercise of his statutory powers. The suspension under Article 359 of the remedy for the enforce ment of fundamental rights is dependent on a Proclamation of Emer gency under Article 352. Parliament. has the power not to approve of - tlw Proclamation, and, thereafter the emergency shall cease to operate. The contention of the respondent means that Parliament cannot meet even so as lo withhold approval of the emergency and thus terminate the suspension of the member's right of moving the court. The Con stitution provides for proclamation of emergency, the suspension of the remedy under Article 359 for enforcement of fundamental rights enabling even detention of members of Parliament when necessary. It Article 85 is not suspended. The six months rule is obligatory. follows that the members' right under Article 105 are not available under a detention in these circumstances. For the purposes of Article 105 (3) a conviction under Penal laws or detention under Emergency Jaws must be deemed to be valid till it is set aside . When under Article 359 the President during the operation of a Proclamation of Emergency by order declares that the right to move any court for the enforcement of rights conferred by Part III shall remain suspended and persons who are members of House of Parlia ment are in detention under orders made under the Maintenance of Internal Security Act, the detention cannot be challenged by collateral . attack on the ground of deprivation of their participation_in the Parlia- · mentary proceedings. The challenge will be questioning the detention on the ground that the detention is in violation of Articles 19, 21 and 22. Article 85 provides that not more than six months shall intervene between the two Sessions of Parliament. Article 85 is not a provision regarding the constitution of'Parliament but of holding of Sessions. A c f} E F G H l 6-Ll26SCI/76 ' A B c D E F G H 422 SUPREME COURT REPORTS [ 197 6] 2 'S.C,R. The powers, privileges and immunities of Parliament and its members as provided in Article 105 are that they shall be such as may be defined by Parliament by Jaw, until so defined, shall be tho>e of {he House of Commons of the Parliament of the United Kingdom. In Special Reference No. 1 of 1964(') it was held that the court could entertain a petition under Article 226 on the ground impcisition of penalty by the legislature on a person who is not a mem ber of the legislature or issuing process against such person for its contempt committed outside the four walls of the House. The scope of the parliamentary privilege of freedom from arrest has been defined positively and negatively. The positive aspect of the privilege 1s expressed in the claim of the Commons to freedom from arrest in all civil actions or suits during the time of Parliament and during the period when a member was journeying or returning Parliament. The privilege has been defined negatively in the claim of the Commons which specifically excepted treason, felony and breach or surety of the peace. The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation. (See May's Parliamentary Practice In early times the distinction between ''civil" 18th Ed. at p. I 00). and "criminal" was not clearly expressed. The development of the privilege has shown a tendency to confine it more narrowly to cases of a civil character and to exclude not only every kind of criminal case, but also cases which, while not strictly criminal, partake more of a criminal than of a civil character. This development is in conformity with the principle laid down by the Commons in a conference with the Lords in 1641 : "Privilege of Parliament is granted in regard of service of the Commonwealth and is not to be used to the danger of Commonwealth". Jn Wilkes casee) it was resolved by both Houses on 29 Novem ber, 1763 that the privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an offence. time" the Committee of Privileges said in 1831 "it has been considered as established generally, that privilege is not claimable for any indict able offence". "Since These being the general declarations of the law of Parliament, the House will not allow even the sanctuary of its walls to protect a Mem ber from the process of criminal law, although a service of a criminal process on a Member within the precincts of Parliament, whilst the Home is sittinl! without obtaining the leave of the House, would be a breach of privilege. The committal of a Member in England for high treason or any criminal offence is brought before the House by a the Sneaker by the committing judge or magistrate. Where a Mem ber i< convicted but released on bail pending an apoeal, the duty of the Ma!!istrate to communicate with the Speaker does not arise. No informing the Speaker arises in the case of a person who duty of letter addressed {ll [1%5] I S.C.R. 41:1. (2) 19 State Tr .• 981. I SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 423 while in prison under sentence of a court is elected as a Member of Parliament. In the case of detention of Members under Regulation 14B of the Defence of Realm Regulations in England, the communi .cation was made to the Speaker by a letter from the Chief Secretary to the Lord Lieutenant of Ireland which was read to the House by the Speaker. The detention of a Member under Regulation 18B of the Defence (General) Regulations, 1939, made under the Emergency Powers (Defence) Acts, 1939 and 1940, led to the Committee of Pri vileges being directed to consider whether such detention constituted a breach of the privileges of the House; the· Committee reported that there was no breach of privilege involved. In the case of a member <ieported from Northern Rhodesia for non-compliance with an order declaring him to be a prohibited immigrant, the Speaker held was no prima facie case of breach of privilege. <See May's Parlia mentary Practice 18th Ed. p. 103). In K. Anandan Nambiar and Anr. v. Chief Secretary Govern meni of Madras & Ors. ('1) the petitioners who were members of Par liament and detained by orders passed by the State Government under Ruic 30 ( l) (b) of the Defence of India Rules, 1962 challenged validity of the orders of detention on the ground that Rule 30 (1) (b) was not valid because "a legislator cannot be detained so as to prevent him from exercising his constitutional rights as such legislator while the legislative chamber to which he belongs is in session". The State raised a preliminary objection that the petitions were incompetent in view of the order issued by the President under Article 359 (1) sus pending the rights of any person to move any court for the enforcement of rights conferred by Articles 14, 21 and 22. This Court held that the validity of the Act, Rule or order made under the Presidential ·Order could not be questioned on the ground they contravene Articles 14, 21 and 22. The petitioners also contended in Nambiar's case (supra) Rule 300) (b) under which the orders of detention had been passed was invalid on grounds other than those based on Articles 14, 19, 21 and 22. This Court held that if that plea was well-founded, the last clause of the Presidential Order was not satisfied, and, therefore, the bar. created by. it suspending the citizens' fundamental rights under Articles 1.f, 21 and 22 could not be pressed into service by the .respondent. Articles 79, 85, 86, 100(1) and 105(3) were considered in Nam biar'~ case (supra) in relation to rights of Members of Parliament, and It was held that the totality of rights cannot claim the status of fundamental rights and freedom of speech on which reliance was falling under Article 105. The placed is a part of the privileges reason is that freedom from arrest under a detention order is not re cognised as a privilege which can be claimed by Members of House of Commons in England. This Court then posed the question that if a claim for freedom from arrest by a detention order could not be sus tained under the privileges of the Members of Parliament whether it ' (I) [ 1966] 2 S.C.R. ;405. A B c 0 E F G 424 SUPREME COURT REPORTS (197 6] '2 S.C.R. \ A B c D E F G H limited could be sustained on the ground that it is a constitutional right which could not be contravened. The statement in May's Parliamentary Practice 7th Ed. at p. 78 which is to be found in the 18th Edition at to . civil p. 100 that the privilege of freedom from arrest is causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation was accepted as the basis of two propositions laid down in Nambiar's case {supra). First, Articles 79, 85, 86, 100 and 105 cannot be construed to confer any right as such on individual Members or impose any obligation on them. It is not as if a Member of Parliament is bound-to attend the session, or is under an obligation to be present in the House when the these Articles appear President addresses it. The context in which individual shows that the subject-matter of these Articles is not the rights of the Members of Parliament, but they refer to the right of the President to issue a summons for the ensuing session of Parliament or to address the House or Houses. Second, the freedom of speech to which Article 105 refers would be available to a Member of Parlia ment when he attends the session of the Parliament. If the order o~ detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. The second ground of challenge that there was no valid session of the House cannot be accepted for the reasons given above. It has also to be stated that it is not open to the respondent to challenge the orders of detention collaterally. The principle is that what is directly forbid den cannot be indirectly achieved. The High Court found first that the appellant has to be regarded as a candidate from 29 December, 1970 as she held herself out on that date as a candidate. The second finding is that the appellant ob tained and procured the assistance of Yashpal Kapur for the further ance of her election prospects when Yashpal Kapur was serving as a Gazetted Officer with the Government of India. The High Court found that Yashpal Kapur's resignation from his serviee though sub mitted on 13 January, 1971 did not become effective until 25 January, 1971 when it was notified. The further finding by the High Court is that Yashpal Kapur under the instructions of the appellant delivered election speech on 7 January, 1971 at Munshi Ganj and another speech at Kalan on 19 January, 1971. The third finding by the High Court is that the appellant and her election agent Yashpal Kapur procured and obtained the assistance of the officers of the State Gov ernment, particularly, the District Magistrate, the Superintendent of Police, the Executive Engineer, P.W.D. and the Engineer to Hydel Department for the construction of rostrums and arrangement supply of power for loudspeakers at meetings addressed by the appel lant on 1 February, 1971 and 25 February, 1971 and further that the said assistance was for furtherance of the prospects of election of the appellant. The High Court found the appellant guilty of corrupt practice under section 123(7) of the 1951 Act. The High Court declared the election of the appellant to be void. The High Court also held the appellant to be disqualified for a period of six years from the date of the order. • • I ' > SMT. INDIRA GANDHI v. RAJ NARAIN (Ray, C.J.) 425 The definition of "candidate" in section 79(b) of the 1951 Act until the amendment thereof by the Election Laws (Amendment) Act, 1975 was as follows : - " 'Candidate' means a person who has been or claims ·to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candi date as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate". This definition has now been substituted by section 7 of Amendment Act, 1975, as follows:- " 'Candidate' means a person who bas been or claims to have been duly nominated as a candidate at any election". Section 10 of the Amendment Act, 1975 further enacted that the amendments shall have retrospective operation so as to apply to and in relation to any election held before Amendment Act, 1975 on 6 August, 1975 to either House of Parlia ment or to either House or the House of the Legislature of a State, inter atia, (iv) in respect of which appeal from any order of any high Court made in any election petition under section 98 or section 99 of the 1951 Act is pending before the Supreme Court immediately before such commencement. the commencement of Section 9 of the Amendment Act, 1975 has substituted clause (a) in section 171-A of the fadian Penal Code and a "candidate" means for the purpose of section 171-A of the Indian Penal Code a person who has been nominated as a candidate at any election. Previously the definition of "candidate" in section 171-A of the Indian Penal Code was the same as in section 79 (b) of the 1951 Act prior to In section 171-A amendment thereof by the Amendment Act, 1975. , of the Indian Penal Code there was a proviso to the effect that candi date would mean a person who holds himself out as a prospective candidate provided he is subsequently nominated as a candidate. the Amendment Act, Relying on the provisions introduced by that she will be 1975, it is contended on behalf of the appellant regarded as a candidate only from 1 February, 1971, namely, date when she has been duly nominated as a candidate at her election, and, therefore, the finding of the High Court cannot be sustained. It is also contended by the appellant that the finding of the High Court that Yashpal Kapur delivered election speeches on 7 January, 1971 and 19 January, 197f under instructions of the appellant cannot be supported because the appellant was not a candidate either on 7 January, 1971 or on 19 January, 1971. A B c D E F G The second finding by the High Court with regard to the resignation of Yashpal Kapur n9t to be effective until 25 January, 1971 is con tended to be d.i&piu~d by legislative change by the Amendment Act, H 1975. Section 8{b) of the Amendment Act, 1975 has introduced Explanation (3) at the e11d of section 123(7) of the 1951 Act. This Amendment has n:t;ro&pective operation. , 426 SUPREME COURT REPORTS [ 197 6] 2 5.C.R. A The Explanation is as follows : - " (3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a. person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof- (i) of such appointment, termination of service, dismissal or removal from service, as the case may be, and resignation, (ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publica tion, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal. from service, such person ceased to be in such service with effect from the said date". The effect of Explanation (3) at the end of section 123(7) of the 1951 Act incorporated by the notification dated 25 January, 1971 in the Gazette dated 6 February, 1971 makes the fact of the resignation of Yashpal Kapur from his service fully effective from 14 January, 1971. It is, therefore, contended that from 14 January, 1971 Yashpal Kapur was not a Government servant. To constitute a corrupt practice within the meaning of section 123 (7) of the 1951 Act the act complained of must be an act of ob taining or procuring of assistance of the categories of Government servants mentioned therein by the candidate or his election agent or by any other person . with the consent of the candidate or his election agent. Section 100(1) (b) of the 1951 Act enacts that if the High Court is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. A returned candidate is defined in section 79 (f) of the 1951 Act to mean a candidate whose name has been published under section 67 of the 1951 Act as duly elected. A returned rnndidate in order to be guilty of a corrupt practice within the meaning of section 123 (7) of the 1951 Act must be guilty of any of the acts mentioned in the diffe rent sub-sections of section 123 as a candidate. The appellant con tends that the appellant was not a candidate on 7 January, 1971 or 19 January, 1971 and there could not be any procuring or obtaini1ng of any assistance by the appellant as a candidate or by anybody else with the consent of the appellant. All the sub-sections of section 123 of the 1951 Act refer to the acts of a candidate or his election agent or any other person with the consent of the candidate or his election B c D E F G H ' • , I SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 427 ... agent. The prese~t definition of "candidate" which has retrospective effect is contended to exclude completely acts by candidate prior to the date he is nominated as a candidate. The third finding by the High Court that the appellant and her election agent Yashpal Kapur procured and obtained the assistance of the officers of the State Government. particularly, the District Magistrate, the Superintendent of Police, the Executive Engineer, P.W.D. and the Engineer to Hyde! Department for construction of rostrums and arrangement for supply of power for loudspeakers and for their assistance for furtherance of the prospects of the election of the appellant has to be tested in the light of the provisions contained in section 123 (7) of the 1951 Act. Under the said provision obtain- ing or procuring by candidate or his agent any assistance for' the fur therance of the prospect of that candidate from Gazetted Officers is corrupt practice. The Amendment Act, 1975 by section 8 thereof has added a proviso to section 123(7) of the 1951 Act. The proviso is as follows : - "Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election". The proviso aforesaid shows that where persons in the service of the Government in the discharge of official duty make any arrange ment or provide any facility or. do any act or thing in relation to a candidate, such arrangements and facilities shall not be deemed to be assistance for furtherance of the prospect of the candidate's election. Therefore, the service rendered bv Government servants for co•,1struc tion of rostrums and arrangements"for supply of power for loudspeakers according to the contention of the appellant could not be considered as assistance for the furtherance of the prospects of the election of the appellant. The contentions of the appellant can succeed if the Amendment Acts of 1974 and 1975 are valid. The respondent has challenged the constitutional validity of these Acts. Therefore, that question has to be examined before the appellant's contentions can be answered. The respondent in cross-appeal High Court on issue No. 9 and contended that the High Court should have held that the election expenses of the appellant exceeded limit. The respondent also challenged the finding of the High Court with regard to issue No. 6 and contended that the High Court should have held that the symbol of cow and calf was a religious symbol and challenged the findings of A B c D E ·F G H 428 SUPREME COURT REPORTS [1976] 2 S.C.R. \ the appellant committed corrupt practice as defined in section 123(3) of the 1951 Act. The respondent did not press Issues No. 4 ~nd 5 which related to distribution of quilts, blankets, dhoties and liquor. The respondent also abandoned Issue No. 7 which related to voters being conveyed to the polling stations free of charge on vehicles hired and procured by Yashpal Kapur. The issue pressed by the respondent was that the appellant and her election agent Y ashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by section 77 of the 1951 Act read with Rule 90. The respondent alleged that the election expenses of the appellant, inter alia, were Rs. 1,28,700/- on account of hiring charges of vehicles, Rs. 43 ,230 /- on account of cost of petrol and diesel; Rs. 9,900/- on account of payments made to the drivers of the vehicles. The respondent further alleged that the appellant Rs. 1,32,000 /- on account of construction o( rostrums for public meetings on 1 February, 1971 and 25 February, 1971. The respon dent contended that the findings of the High Court should be reversed. The High Court found that the election expenses furnished by the appellant were Rs. 12,892.97. The High Court added another sum of Rs. 18,183.50. The three items which were added by the High Court were cost of erection of rostrums amounting to Rs. 16,000t-, cost incurred in installation of loudspeakers amounting to Rs. 195 i / and cost for providing car transport to respondent No. 1 amountino to Rs. 232.50. The total election expenses found by the High Court came to Rs. 31,976.47 which was below the prescribed limit of Rs. 35,000/-. With regard to hiring charges of vehicles the High Court found that the respondent did not examine any witness to whether the vehicles were used only for party propaganda or they were used in connection with the election of the appellant. The High Court further found that the documents which were relied on by the respondent did not establish that the vehicles had been engaged or used in connection with the election work of the appellant. indicate as ' The respondent repeated the following contentions which had been advanced before the High Court. Dal Bahadur Singh, President, District Congress Committee wrote a letter to the District Election Officer intimating that 23 vehicles had been engaged by the District Congress Committee for election work in Rae Bareli, Amethi and Ram Sanehi Ghat constituencies, and, therefore, the vehicles should be de requisitioned. Dal Bahadur Singh thereafter wrote a note to Yashpal .,_ Kapur and requested that the Jetter be sent to the District Election Officer to that effect. Yashpal Kapur wrote a letter to the District Election Officer and repeated the prayer contained in Dal Babadur Singh's letter. that because Yashpal Kapur was the election agent of tbe appellant and he moved for the de requisition of the vehicles it should be inferred that the vehicles were engaged for the election of the appellant. Yashpal Kapur said the vehicles were used in the three Parliamentary constituencies. The It was, therefore, contended ' A 8 c D E F G H I SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 429 High Court rightly held that the evidence did not establish vehicles had been used for the election work of the appellant. The _High- Court also correctly found that there was no evide~ce t~ show that Yashpal Kapur made any propaganda from the vehicles Ill any manner for the purpose of the election. · With regard to the expenses for the erection of rostrums the res pondent contended that the appellant's election expenses clude Rs. 1,32,000/- as the costs for erection of rostrums for the meetings on 1 February, 1971 and the meeting on 25 February, 1971. The High Court held that Rs. 16,000/- could only be added to the election expenses of the appellant consisting of Rs, 6,400/- for xostrums and Rs. 9,600/- for six rostrums . should The amount or Rs. 16,000/- which was added by the High Court on account of cost of erection of rostrums cannot be included in the .election expenses of the appellant by reason of amendment to ~ection 77 of· the 1951 Act by the Amendment Act, 1975. Explanat10n 3 has been added as follows : - "For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belongio.g to any of the classes mentioned in clause (7) of section 123 in the discharge or pmported discharge of his official duty as men tioned in the proviso to that clause shall not be deemed be expenditure in connection with the election incurred or authorised by a candidate or by his election agent for the purposes of this sub-section." By the Amendment Act, 1975 a proviso has been added to section 123(7) of the 1951 Act to the effect that arrangements made or facili- ties provided or any act clone by a Government servant belonging to the class mentioned there in the discharge of official duty shall not be deemed to be assistance for furtherance of the prospects of that candi- date's electioi1. All thes·e amendmen~s have retrospective operation. Therefore, the cost of rostrums cannot be added to the election ex penses of the appellant. Services rendered by Government servants for the erection of rostrums and for supply of power for lo~dspeakcrs cannot be deemed to be assistance for the furtherance of the prospects -of that candidate's election. A B c D E F G The respondent contended that Exhibit 118 which was the Bank account of the District Congress Committee showed on the one hand 1hat there was deposit of Rs. 69,930/- on 4 March, 1971 and on the -other there was a withdrawal of Rs. 40,000/- on 4 March, 1971 and of Rs. 25,000/- on 6 March, 1971, and, the sum of Rs. 65,000/- should be added to the election expenses of the appel- lant. When it was put to Yashpal Kapur that the sums of Rs. 40,000/· H and Rs. 25,000/- were withdrawn by Dal Bahadur Singh, Yashpal Kapur said that he was not aware of it. There is no pleading in the election petition that the appellant authorised incurring expenditure therefore, " .. ' A B c D E F G H 430 SUPREME COURT REPORTS (1976] 2 S.C.R. by a.political party. There is no pleading that any amount ha5 been paid by the political party. There is no complaint in the petition about the sum of Rs. 65,000/- or the sum of Rs. 69,930/-. Yashpal Kapur denied knowledge of Rs. 70,000/-. The appellant was not. asked a single question. There is no evidence to identify any of these payments with the election of the appellant. It is appwpriate at this stage to refer to the amendment which was introduced by the Amendment Act, 1974. The appellant relies Gn the provision to show that expenses incurred or authorised by a political party cannot be included in election expenses. Explanation I end of section 77 of the 1951 Act by which was inserted at the Amendment Act, 1974 is that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by an individual other ihan the candidate or his election agent shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or authorised by the candidate or by his election agent. A proviso was also added to the aforesaid Explanati·::m I by the Amendment Act, 1974. The proviso stated that nothing contained in the Expianation shall affect (a) any judgment, order or decision or the Supreme Court whereby the election of a candidat.: House of the People or to the Legislative Assembly of a State has been dcclai·ed void or set aside before the commencement of Represeniation of the People (Amendment) Ordinance, 1974; (b) any judgment, order or decision of a High Court whereby ti1e election of any such candidate has been decll~red void or set aside before the· commencement of the said Ordinance if no appeal has been preferred to the Supreme Court against such judgment, order or deci:-.ion of the High Co~irt before such commencement and the period o[ limitation for filing such appeal has expired before such commencement. Explanation 2 which was added to section 77 of the 1951 Act by the amendment Act, 1974 is as follows:- '·For the purposes of Explanation · I "political party" shali have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force". Counsd for the respondent relied on the recent decision of this Court in Kanwar Lal Gupta v. A rnarnath Chawla & Ors. (1) in sup port of tlie proposition that there has been no change in law and expenses incurred by a political party can be identified wiLh the elec tion of a candidate then that expenditure is to be added to the eiee tion expenses of a candidate as being authorised by him. There are· that any no find in.l(S by the High Court in expenses bv a political party were authorised by the appellant. There is also no finding in the present appeals that any expenses incurred by a political party can be identified with the election of the appellant. The changes in law affected by the Amendment Acts, 1974 and 1975 the present appeals (I) A.l.R. 1975 S.C. 308. \ .. , I SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 431 totally repd the submissions on behalf of the resp?ndenL Exp~nses incurred or authorised in connection with the election of a candidate by a policical party shall not be deemed to be and shall not ever. be deemed to have been expenditure in co11nection with the elect~on incurred or authorised by the candidate. Furthermore, the in Kanwur Lal Gupta's case (supra) is no longer good law because of the legislative changes. Counsel for the respondent contended that the judgment of the High Com t should be reversed with regard to election expenses of the appellant on three counts. First, Exhibit 118 shows that . the sum m Rs. 65,000/- which was drawn by the Congress Committee should have been held by the High Court on a reasonable inference to have been spent by the District Congress Committee as having been autf;oriscd by the election agent of the appellant. Se.:ond, the High Coun has not taken into account expenses of the election agent at 12 rn1;etings other than the meetings addressed by the appellant and has also not taken into account the telephone expenses of election agent. The telephone expenses amounted to Rs. 836.85 between 11 January, 1971 and 10 February, 1971 and a (urtha sum of Rs. 2,514/- for the period 11 February, 1971 to 15 March, 1971. if 20 Third, it is said that there were 5000 polling booths and workers were required per booth then 10,000 workers would be required and the only inference is that an amount in excess was spent for workers with the authority of the election agent. '!" J • ~ -' • ' ( In Issue No. 9 there was no amount alleged with r,~gard lo tele phone bills or election meetings under the heading of alleged election expenses. There was no allegation that effect in the petition. With regard to expenses for the alleged 12 meetings addr.::ssed by the election agent the evidence of Yashpal Kapur is that he addressed about a dozen meetings and he did not include in the election return the expense~ incurred for installation of loudspeakers because expenditure was not incurred by him. He also said that he did not include in the election return the expenses incurred over the construc tion ot platforms because the meetings were arranged by the District Congress Committee. No allegations were made in the petition with regard to any alleged sum of money on account of election meetings where the election agent spoke. The High Court rightly said the telephone expenses and expenses for meetings could not be taken into consideration because no suggestion of the case was made until the stage of arguments. The respondent's submission is that the appellant was the Prime Minbter at the time of the election, and, therefore, there was a big campaign and the expenses were enormous. That will mean little. Expenses incurred or authorised by a political party are under th' Amendment Act, 197 4 not to be deemed to be expenditure m con nection with the election incurred or authorised by the candidate or by his election agent for the purposes of section 77 of the 1951 Act. , c E F G H .&..-··- 432 SUPREME COURT REPORTS [1976] 2 S.C.R. \ The part piayed by a political party in connection witi1 candidates of the party at the election particularly in relation to expenditure incurred by the political party with regard to candidates 9f the party has been the subject of some decisions of this Court. This Court has observed that expenditure must be by the candidate himself and any expcnd1mre in his interest by others (not his agent within the meaning or the term of the Election Laws) is not to be take1i note of. Where vehicles were engaged by the Congress Committee and used by the candidate, the amount spent by the Congress Committee could not be taken to be included in the expenditure of the candidate's election expenses (See Hans Raj v. Pt. Hari Ram & Ors.(1)). Ex penscs incurred by a political party in support of its candidates have beeJ. held by this Court not to fall within the mischief of section 123(6) of the 1951 Act (See Shah Jayanti/al Ambalal v. Kasturilaf In Rananjaye Singh v. Baijnath Singh Nagindas Doshi & Ors. (2)). this Court pointed out that expenses must be incurred ·or & Ors. ( 11 ) In that case lhc Manager, authorised by the candidate or his agent. the Assistaat Manager, 20 Ziladars and their peons were :::Ueged to have worked for the election of the appellant. This Court held that the employment of extra persons and the incurring or authorising of extra expenditure was not by the candidate or his election agent. The extra men employed and paid were in the employment 01 the father of the appeliant. This Court said that the position in Jaw could 11ot be at all different if the father had given those employees a holiday on full pay and they voluntarily worked in connection with the elec tion of the appellant. Persons who volunteer to work cannot be said to be employed or paid by the candidate or by his eie.:tion agent. In Ram Dayal v. Brijraj Singh & Ors. ( 4 ) the appellant challeng ed the election of the respondent on the ground that the Maharaja and the Rajmata of Gwalior had helped the respondent's election in a number of ways and acted m• his agents and the respondent incurred considerable expenditure which exceeded the limit. This court found that assum:ng the expenditure was incurred by the Maharaja and the Rajmata of Gwalior for the purpose of ca~vassing votes, _in the absence of any evidence to show that the Mahara1a and the Ra1mata acted as election agents or that the expenditure was authorised by the respon dent, it was not liable to be included in the election expcnscs . . On behalf of the respondent it was said relying on !he decisio;i of this Court in Kanwar Lal Gupta's case (supra) that rf the c~ind1- date takes advantage of expenditure incurred by the political party in connection with -the election of the candidate or participates in the programme of activity or fails to disavow the expenditure the candi date cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure but his political party has clone so. Exp~n­ diture incurred- by a political party in connection with the election iE F H (I) 40 F. L. R. 125. (2) 42 F.L.R. 307. 13) [1955] 1 S.C.R. 671. (4) [1970] l S.C.R. 530. ... , I SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 433 of the candidates of the party is not a part of the election expense.s of the candidate. Similarly, participation in the pr~gramme of a~t1- vity organised by a political party will not fall 'Y1thm. the elec~1on expenses of the candidate of the party. A candidate 1s not reqmred to disavow or denounce the expenditure incurred or authorised 'by the political party because the expenditure is neither incurred nor authorised by the candidate. One can disavow what would be the case of ascribed to be incurred or authorised by one. expenses of a political party there is no question ot disavowing expenditur~ incurred or authorised by the political party. In In Megh Raj Patodia's case C The decision in Kanwar Lal Gupta's case (supra) was based on in Megh an obscrv<ttion extracted from the decision of this Court Raj Patadia v. R. K. Bir/a & Ors. (1:). (supra) the allegations were that the respondent had been put up by one of the· wealthiest business houses in the country which owned or controlled a large number of companies and during the election cam paign vast material and human resources of these companies were drawn upon by the respondent. This Court dismissed the appeal on the ground that the appellant had failed to establish that expenditure in excess of the prescribed limit was incurred by the respondent. In Megh Raj Patodia's case (supra) there is an observation that expenses incurred by a political party to advance the prospects of the candidates put up by it without more do not fall within section 77 of the 1951 Act. The words "something more" were construed by counsel for the res pondent to mean that if a candidate takes advantage of expenditure incurred or authorised by a political party such expenses could be attributed to a candidate. The Amendment Act, 1974 has added' E Explanation 1 to section 77 of the 1951 Act which shows that expen diture incurred or authorised in connection with the election. of a candidate by the political party shall not be deemed to be expenditure incurred or authorised by the candidate or his election agent. ]) .. • Allegations that election expenses are incurred or authorised by a candidate or his agent will have to be proved. Authorisation means \ F acceptance of the re~ponsibility. Authorisation must precede the ex penditure. Authorisation means reimbursement by the candidate or election agent of the person who has been authorised by the candidate In order or by the election agent of the candidate to spend or incur. to constitutr authorisation the effect must be that the authority must carry with it the right of re-imbursement. For the foregoing reasons the contentions of the respondent that the appellant exceeded the limit of election expenses fail. The respondent contended that the amendments by the Amendment Acts of 1974 and 1975 are constitutionally invalid. It may be stated here that the Constitution (Thirty-ninth Amendment) Act, 1975 in sec tion 5 thereof enacts that in the Ninth Schedule to the Constitution G H , (1) [1971] 2 S.C.R.118. I ' "' - 434 SUPREME COURT REPORTS [1976) 2 S.C.R. A after entry 86, inter alia, the following Entries shall be namr.ly : - inserted, "'87. The Representation of the People Act, 1951 (Central Act 43 of 1951); The Representation of the People (Amend- ment) Act, 1974 (Central Act '58 of 1974); and the Eleclion Laws (Amendment) Act, 1975 (Central Act 40 of 1975)". 18 . The contention of the respondent is that when the power of amend ing the Constitution cannot be exercised to damage or destroy the basic features of the Const.itution or the essential elements of the basic struc ture or framework thereof the limitations on the exercise of legislative power will arise not only from the express limitations contained in the Constitutiqn, but also from necessary implication either under Articles or even in the Preamble of the Constitution. This contention on behalf of the respondent is expanded to mean that if the democratic way of life through parliamentary institutions based on free and fair elections is a basic fl':alure which cannot be destroyed or damaged by amendment of the Constitution, it cannot similarly be destroyed or damaged by any legislative measure. These reasons were submitted by the respondent. First, the power to resolve doubts about the validity of elections of Parliament ;incl State Legislatures has been vested by the Constitution in the jpdicial organ competent to decide election, petitions and, therefore, it is not open to the Legislature to take away and interfere with these exclusive functions of the judiciary by any legislation amending the law govern ing the electirm adjudicated by the judiciary. Second, the insertion of these Acts in the Ninth Schedule will not confer any irr.mu nity on the legislative measure if basic features of the Constitu tion are damaged or destroyed on the ground that the provisions contravene Part Ill of the Constitution. Third, any provision legislative measures which has the effect of bringing about unfairness between different rival candidates in the matter of election i& discriminatory and it not only contravenes Articles 14 but also v.io Iates the implied limitation on legislative power relating to free and fair elections. Fourth, any amendment of the law with retrospective opera tion governing an election which has already been held necessarily in troduces an element of unfairness and brings about a denial of equality among rival candidates. : Fifth, the deeming clause introduced in the 1951 Act by sections 6(b) and 8(a) and (b) of the Amendment Act, 1975 and the device of conclusive proof adopted by section 8 ( c) in the Amendment Act, 1975 are unconstitutio:ial encroachments on judicial power. Sixth, power conferred by an enactment including a constitu tional enactment has to be so exen;ised as to give effect to the guiding principles of the basic norms of that legislation and not so as to militate against those guiding principle~ or basic norms. The definition of "candidate" is amended by the Amendment Act, 1975. The contentions of the respondent on the amendment of the definition of "candidate" are these. The expression "returned candi date" is descriptive of the person and the corrupt practices mentioned in section 123 of the 1951 Act in relation to a candidate will not be c D iE F G H -~ ,, . ' SMT. INDIRA GANDHI v. RAJ NARAIN (Ray, C.J.) 435 <Confined to c?rrupt practices com~itted with. referen_ce to the ~efi?i­ tion of •·candidate". Corrupt practices alleged m relat10n to cand1daces will be relatable to any period and will not be confined to corrupt prac tices alleged between the date of nominat:ion and the date of election. If corrupt practices are committed by ca~d1dat~s who eventuall)'. b~come returned candidates such corrupt practices will be, offence~ w1th111 .th~ meaning of section 123 of 1951 Act without any reference to the time of commission. Counsel on behalf of the respondent also contended as follows. The basis of fair and free elections is that the election of a candidate will be .avoided if any corrupt practice has been committed by the candidate by or with the knowledge and con~ent of that candidate. The acts of a candidate may be eithi;:r anterior to the date of nomination or it may be subsequent to the date of nomination. Therefore, the Amendment Act, 1975 destroys and damages free and fair election by allowing candidates to commit corrupt practices prior to the date of nomination. The Amendment Act, 1975 is also challenged as falling within the vice of delegated legislation by the amendments inserted as Explanation 3 to section 77 of the 1951 Act and the insertion of the proviso to sec tion 123 (7) of the 1951 Act. These provisions have already been notic ed. Broadly stated expenditure incurred by persons in Government service will not be deemed to be for furtherance of the candidate's elec tion. The contentions are these. No guidelines have been laid down as to what expenditure can be .incurred or what facilities can be made. what acts or things can be done. Delegation cannot include the change of policy. Policy must be clearly laid down in the Act for carrvi'l!! into effect the objectives of the legislation. The legislature must declare the policy. Any duty can be assigned, any facility in connection with the election can be asked for by the party in power to be done for the candidate. The official duty opens a wide power of instructions to Government servants who may be asked to assist candidates by can vas;sing, influencing which will damage fair elections. The device of conclusive proof which is .introduced to add Explana tion 3 to section 123(7) of the 1951 Act. with regard to the date with effect fr.om which the person ceased to be in service is said to be an encroachment on judicial power. Section 8(a) of the Amendment Act. 1975 which adds a proviso to section 123 of-the 1951 Act to the effect that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol· or a national symbol for the purposes of this clause is attacked as legalising religious symbols and thus offending securalism. Section 10 of the Amendment Act, 1975 which enacts amendment shall have retrospective effect is challenged as retrospec tively Jegalisin!! a void election. These submissions are made. Ti! this power i~ upheld there can be a legislative measure to avoid valid elec tions. The distinction between law abidinQ: persons and lawless nerson~ .is eliminated. One person has not been given the opportunitv of ~pend­ ing money at the time of election but the other is retrospectively given A B C D E F G H ... 436 SUPREME COURT REPORTS [1976] 2 S.C.R. A the advantage of spending in excess and thereafter of avoiding the effect of excess expenses by validation. It has to be appreciated at the threshold The contentions on behalf of the respondent that ordinary legislative measures are subject like Constitution amendments to the restr.ictions of not damaging or destroying basic structure, or basic features are utterly unsound. contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative mea- sures with Constitution amendment. The hierarchical structure of the legal order of a State is that the Constitution is the highest levd within national law. The Constitution in the formal sense is a solemn docu ment containing a set of legal norms which may be changed only when special prescriptions are observed. The purpose of special prescrip tions is to render the change of these norms more difficult by regulating the manner and form of these amendments. The Constitution consists of those rules which regulate the creation of the general legal norms, in It is because of the material Con particular, the creation of statutes. stitution that there .is a special form for constitutional law. If there is a constitutional form then constitution laws must be distinguished from ordinary laws. The material Constitution may determine not only the organs and procedure of legislation, but also, to some degree, the con tents of future laws. The Constitution can negatively determine that the laws must not have a certain content e.g. that the Parliament may In this nega not pass any statute which restricts religious freedom. tive way not only contents of statutes but of the other norms of legal order, judicial and administrative decisions likewise, may be determined by the Constitution. The Constitution can also positively pr~cribe certain contents of future statutes. This may be illustrated with re ference to the prov.isions in Article 22 that no person who is atTested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Articles 245 and ~46. give pl~nary powers to legislatures to legis !ate: The only questwn is whether any pro~ision of the Const.itution 1s v10lated. The power of plenary body is not to be construed like the pOlyer of a delegate. The largest kind of power will be attributed legislature. ' !h~ only prohibiti~n ~s Wfth reference to the provisions of ~e Const1tut10n. The ConstJtut10n Is the conclusive instrument by which powers are affirmat1v~IY'. created or negatively restricted. The only relevant test for the vahd1ty of a statute made under Article 245 is whether. tl1c lel?islation is within the scope of the affirmative grant of power or is forbidden by some provision of the Constitution. To. accept t~e ~asic features or basic structures theory with regard t? ?rd!nary leg1sla.t10n. would mean that there would be two kinds: of hm1tatlons for le~1slatlve, measures. One will pertain legislative pow~r. un~er A~tJcles 245 and 246 and the legislative entries and the prov1s10n m ~rt1cle 13. The other would be that no legislation can be m~de as to oamage or destroy basic features or basic structures. · This ~Ill ~ea!1 rewriting the Constitution and robbing the legislature of act mg w1thm the framework of the Constitution. No legislation can be B c D E F G H " .. SMT. INDIRA GANDHI ~· RAJ NARAIN (Ray, C.J.) 437 free from challenge on this ground even though th~ legislative measure A .is within the plenary powers of the legislature, The theory of implied limitations on the power of amendment of the Constitut10n has been rejected by seven Judges in Kesavananda Bharati's case (supra). Our Constitution has not adopted the due process clause of the American Constitution. Reasonableness of legis lative measures is unknown to our Constitution. The cruc:ial point is B that unlike the American Constitution where rights are couched in wide general terms leaving it to the Courts to evolve necessary limitations our Constitution has denied due process as a test of invalidity of law. In A. K. Gopalan v. State of Madras(1) due process was rejected by clearly limiting the rights acquired and by eliminating the indefinite due process. Our Constitution contemplates that considerations of justice or general welfare might requ:ire restriction on enjoyment of C fundamental rights. The theory of basic structures or basic foalu!.'es is an exercise in im ponderables. Basic structures or basic features are indefinable. The legi3lativc entries are the fields of legislation. The pith and substance doctrine has been appl.led in order to find out legislative competency, and eliminate encroachment on legislative entries. If the theory off basic D structures or basic features will be applied to legislative measures it will denude Parliament and State· Legislatures of the power of legislation and deprive them of lay.ing down legislative policies. This will be en croachment on the separation of powers. The constitutional validity of a statute depends entirely on the exis tence of the legislative power and the express provision in Article 13. Apart from the limita,ti9n the legislature is .pot :subject to any other prohibition. The amendments made to the 1951 Act by the Amend ment Acts, 1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain views departed from or otherwise to clarify the original intt'.,ntion. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enu tnerate 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 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 These are all legislative policies. allotted to candidates at election. The conclusive evidence or conclusive proof clause is an accepted legislative measure. Similarly, giving retrospective effect to legislative amendment is accepted to be valid exercise of legislative power. The termination of ---- - - - - (1) [1950]S.C.R. 88.) E F G H 7-126SCT /7 6 ·, •. - 438 SUPREME COURT REPOR'fS [1976] 2 S.C.R. A well-known pattern of all Validation Acts by which the basis of judg ments or orders ofl competent Courts and Tribunals is changed and the judgments and orders are made ineffective is to be found in M. P. V. Sundararamier & Co. v. The State of Andhra Pradesh & Anr(1). The powc1 of the legislature to pass a law includes a power to pass it retro,pectively. An important illustration with reference to retrospective legislation in regard to election is the decision of this Court, in Kanta Kathuria's case (supra). Kanta Kathuria was dis qualified by reason of holding an office of profit. First the Ordinance and later the Act was passed to nullify the decision of the High Court. The Ordinance as well as the Act stated that notwithstand ing any judgment or order of any court or Tribunal, the ollicer shall not be dis4ualified or shall be deemed never to have disqualified the holders thereof as a member of the Legislative Assembly. The ren dering of a judgment ineffective by changing the basis by legislative enactment is not encroachment on judicial power because the legis lation is w itnin the competence of the legislature. A contention was advanced that the legislative measure could not remove the disqualification retrospectively, because the Constitu tion contemplate disqualification existing at certain time in accor dance with iaw existing at that time. One of the views expressed in that case is that Article 191 recognises the power of the Legislature of the Stale to declare by law that the holder of the office shall not be disqualified for being chosen as a Member. Power is reserved to the Legislature. of the State to make nothing in the Article to indicate that this declaration cannot be made with r~trospective effect. The Act was held not to be ineffec tive in its retrospective operation on the ground that it is well recog niseu that Parliament and State Legislatures can make operate retrospectively. Any law that can be made prospectively that certain . can be made with retrospective operation. , kinds of laws cannot operate retrospectively. That is ex-post facto legislation. that category. Reference may be made to May's Parliamentary Practice 17th Ed. p. 515 where instances are given of validation of election by British Parliament. ihe present case does not fall within the declaration. There It is said This Court in Jumuna Prasad Mukhariya & Ors. v. Lachi Ram & Ors. (2) rejected the contention advanced that sections 123(5) and 124(5) of the 1951 Act interfered with a citizen's funda mental right to freedom of speech. This Court said that these laws do not stop a man from speaking. They merely prescribe condi tions which must be observed if one wants to enter Parliament. The right to stand as a candidate and to contest an election is not a com mon law right. It is a special right created by statute which can only The Fun be exercised on the conditions laid down by the statute, Jamcntal Rights Chapter has no bearing on a right like this created by a statute relating to Election. (1) [1958] S.C.R. 1422 (2) [1955) I S.C.R. 608, c 0 E F G H ' • SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 439 The coutention on behalf of the respondent that the amcndmei;it of the definition of "candidate" has damaged or destroy~d basic srructurc is untenable. There is no basic structure or basic fcat~rc or basic framework with regard to the time when under th~ Ele~t10n Laws a person is a candidate at the election. . The,, c?ntent10:i of th~ resppndent that the expression "returned candidate . 1s descnpt1ve of the expression "candidate" will rob section 100 of its content. 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. A significant distinction arises between. the electoral o!Icnces under the 19 51 Act and the offences under scct10ns the 1951 171-A to 1/1-1 of the Indian Penal Code, namely, that Act uses the word "candidate" or his election agent with reference to various oill:nces, whereas the Indian Penal Code does not use the word "ca11didate" in relation to commission of any offence. Any person may fall within the offences of bribery, undue influence, Indian Penal personation at elections within the provisions of the Code or for false statement or illegal payments in connection with :any election or failure to keep election accounts. A B c The English Representation of -the People Act, 1949 called the D English Acr. was relied on by the respondent to show that the word •'candidate" in the 1951 Act should have the same meaning as in the English Act and there should be no limitation as to time in relation to a candida:c. "Candidate" is defined in section 103 of the English 1s Act in relation to parliamentary election to mean a person who elected to serv.: in Parliament or a person who is nominated as a can- didate at the election or is declared by himself or by others to be a camlidate on or after the day of the issue of the writ for the election, or after the dissolution or vacancy in consequence of which the writ was issued. The electoral offences under the English Act speak of a person to be guilty of corrupt practices of bribery as· mentioned in section 99, of treating as mentioned in section 100 anJ of undue influence as mentioned in section 101 of the English Acr. These sections in the English Act speak of a person and do not use expression "candidate". from which his Where a candidate is elected the English definition gives no com mencing date as candidature has ccmmenced; whereas, if he be not elected, he is not a candidate until he has been nominated, or is declared to be a candidate on or after the di:;solu- tion or vacancy. A candidate who is elected a "candidate" as . soon as he has ~ntered upon his election ca~paign, and has made 1t known that he mtends to present himself as a can didate at the ensuing election, he may thus become a candidate before the dissolution of Parliament, and may be unseated for bri- bery or_ treating committed months or even years before the vacancy or _elcct10n, fo~ such a~ts are offences at common law. With respect to 1llegal practices, which ~re pu.rely statutory offences, it would seem that a narrower construction will . prevail, and that a candidate wilt not be held responsible for payments etc., made before he is a can- accordincrly E F G H 440 SUPREME COURT REPORTS (1976] 2 S.C,R. '• A B c D E F G H didate in point of fact, and which payments only become illegal prac l Sec tices by reasun of his subsequently becoming a Parker's Conduct of Parliamentary Elections 1970 Ed. pages 52-53). candidate subsequently becoming It has been held in England that a candidate may be unseated for l:>ribery or treating committed months or even years before vacancy or election [Youghal('l) and Bodwin(")]. The present posi tion under th;;; English Act is stated in Parker's Conduct of Parlia mentary Elc.:tions 1970 Ed. at p. 330 to be that since the corrupt practicc under consideration is purely a statutory offence, which only becomes a corrupt practice by reason of the person in whose support a the prohibited expenses were incurred candidate, the candidate may not be held responsible. In Norwich(3) the question' was considered in relation to the responsibility of a candidate for payments which only become illegal practices by reason of his subsequently becoming a "candidate" as defined by statute, and it was hdd that he was not liable. The liability of a candidate under the English Act, particularly, with regard to election expenses as laid down in section 63 of the English Act is regarded as open to doubt until the point is settled by the decision of an election court. Sections 171-A to 171-1 of the Indian Penal Code and the pro visions contained in sections 125 to 136 of the 1951 Act foilow the pattern of English Acts, namely, Statutes 17 & 18 Victoria, Chapter Cll (1853-54); Statutes 21 & 22 Victoria, Chaptcr LXXXVII ( 1858) and Statutes 46 & 47 Victoria, Chapter LI (1802). These English Statutes make certain acts punishable as corrupt practice when they relate to persons other than candidates or voters. Section 11 of 17 & 18 Victoria, Chapter CU ena,cts that the persons mention ed therein shall be deemed guilty of bribery and punishable in accordance with the provisions of the Act. The words used there are "every person'" who shall do the acts mentioned therein shall be In these sections dealing with the acts of persons other punishable. than candidates and voters no time is mentioned. On the other hand, section IV of Statutes 17 & 18 V'.ctoria, Chapter CII makes certain acts of voters and candidates corrupt practice. Section IV of the aforesaid English Statute enacts that every candidate at an election who shall corruptly by himself, or by or with any person or by any other ways or means on his behalf, at any time, either before, during, or after any election, directly or indirectly give or provide, or cause to be given or provided any expenses incurred for any meat, drinlc, entertainment, etc. shall be deemed guilty of an offence of In these sections when the acts of voters am! candidates treating. are made punishable the words used are "before or during any elec tion, directly or indirectly or at any time either before, durinP' or ':nake after any election" in Section IV of the Act. These words acts of voters or candidates committed before or during an election also corrupt practice. Without these words acts of the candidate made punishable under the English Statutes would only be the acts committed by the candidate after he becomes a candidate. (1) 1 O'M. & H. 295. / (3) 54 L.T. 627! (2) 5 O'M. & H. 230. SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 441 The 1 9 51 Act uses the expression "candidate" in several offences for the purpose of affixing liability .with reference to a person being a candidate. to a person being a candidate it can be said th!1t from the rnomen.t a person is elected he can be said to hold himself out as a candidate for the next election. The definition in the English Act cannot be of any aid to the construction of the 1951 Act. If no time be fixed with regard relation > ·· The contention of the respondent is that if a candidate is free to spend as much as a candidate likes before the date of nomination and a great premium would be placed on free use of mone!' before the date of nomination. The 1951 Act specifies what elect10n expenses arc of a candidate. The statute specifies time in regard to a candi date. That time cannot be enlarged or reduced. The holding out by a person if candidature was a flexible and elastic idea. The date of nomination is definite and doubtless. Different views may he taken as to the time of holding out. The legislature has now set the matter at rest. The word "incur" according to the dictionary meaning means to become liable to. The word "incur" means undertake the liability even if the actual payment may not be made immediately. The undertaking of the responsibility for the expenditure concerned may be either by the candidate or his election agent. Again, a candidate is also to be deemed responsible for the expenditure if he has autho rised a particular expenditure to be made by someone else on his behalf. The contention on behalf of the respondent is that the Amend ment Acts of 1974 and 1975 fall within the vice of delegated legisla tion because there are no guidingi principles with regard to official duty or 11aturc of expenditure in Explanation 3 to section 77 of the 1951 Act and in the proviso to section 123(7) of the 1951 Act. Official duty will be a duty in law. Official duty will be duty under administrative directions of the Executive. Official duty will be for security, law and order, and matters in aid of public purpose. These duties will be in connection with election. To illustrate, section 197 of the Criminal Procedure Code speaks of official duty. This Court in Mata jog Dobey v. H. C. Bhari(1) interpreted the words "official duty" to have reasonable connection between the act and the discharge of duty. The act must bear such relation to the duty that the person could lay a reasonable claim, but not a pretended fanciful claim, that he did it in the course of the performance of his duty. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restric tions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for 1'uc11 execution, because it is a rule that when the law commands a (I) [1955] 2 S.C.R. 925. A B c D E F G H 442 SUPREME COURT REPORTS (1976] 2 S.C.R. A thing to be done, it authorises the performance of whatever may be necessary for executing its command. "Delegation There is no vice of delegation in the Statutes. not the complete handing over of transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought has unfortuna tely resulted from assuming that delegation involves or may involve, the complete abdication or abrogation of a power. This is pre cluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely deri vative. The ultimate power always remains in the delegator and is never renounced". [See Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Other.;(,' )l. The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharatis case (supra). The 29th Amend ment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld validity of the 29th Amendment Act. The unanimous view of this Court in Kesavananda Bharati's case (supra) is that Article 3 lB is not open to challenge. Six Judges held that the 29th Amendment Act would be ineffective to protect the impugned Act if they away the fundamental rights. Six Judges took the view 29th Amendment Act is valid and further that Article 3 lil has been held by this Court to be independent of Article 31A and that Article 3 lB protects Scheduled Acts and Regulations and none of the Sche duled Acts and Regulations is deemed to be void or ever become void on the ground of contravention of any fundamental rights. Article 3 lB gives a mandate and complete prote.:fa>n from the challenge of fundamental rights to the Scheduled Acts and Regu lations. The view of seven Judges in Kesavananda Bharati's case (supra) is that Article 31B is a constitutional device to place the speci fied statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment Kesavananda Bharati's case (supra) by majority of seven against six Judges. allirmed The contentions of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic framework 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 (supra) is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31B is not open to challenge on the (1) [1974] 4 S.C.R. 98 at 116. B c DJ E F G H SMT. INDIRA GANDHI V. RAJ NARAIN (Ray, C.J.) 443 • .. ground of either damage to or destruction of basic. fe~tures, basic structure or basic framework or on the ground of v1olat10n of funda- mental rights. The symbol allotted to the party of the appellant was: characteris- ed by the respondent as a religious symbol. ~Jnder Articl~ 324 t~e superintendence, direction and control of elections to Parliament, is vested in the Election Commission. Rule 5 of t~e. Conduct of Ele~­ tions Rules, 1961 states that the Election Com~1ss1on shall, by J?.Ot1- fication in the Gazette of India and in the Official Gazette of · each State, specify the smybols that may be c~osen .by cand~datcs a~ ~lec- tions in Parliamentary or Assembly constituencies and tne restnctions the - 1961 to which their choice shall be subject. Rule 10 ( 4) of Rules aforesaid states that at an election in a Parliamentary or Assembly constituency, where a poll becomes necessary, the returning officer shall consider the choice of symbols, expressed by the contest- ing candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Com mission allo( a different symbol to each contesting candidate in con formity, as far as practicable with his choice. therefore, apparent that the power to specify permissible symbols is vested by Rule 5 in the Election Commission. The choice of candidates limited to the symbol specified by the Election Commission. The Election Symbols (Reservation and Allotment) Order, 1968 was made in exercise of the power conferred by Article 32B of the Cons titution read with Rule 5 and Rule 10 of the Conduct of Election Rules and all other powers enabling in this behalf. is, It Clause 17 of the Election Symbols (Reservation and Allotment) Order, 1968 provides that the Commission shall by notification in the Gazette of India publish lists specifying national parties and the sym bols respectively reserved for them etc. There can, therefore, be no doubt that the power of evolving permissible symbols is exclusively vested in the Election Commission. · It is under their direction that the Returning Officer has to make allotments and allotments are made in term§ of Clauses 5, 6 and 8. Therefore, in the matter of evolving of the permissible symbols, the jurisdiction is vested in the Election Commhsion. If a candidate displays in addition to the allotted sym bol an additional symbol which may have a special appeal on grounds of religion to a particular community, then the Court will be entitled to go into this question. · With regard to the symbol of cow and calf being a religious sym bol it was said on behalf of the respondent that the Akhil Bhartiya Ram Rajya Parishad asked for cow, calf and milkmaid symbol and were refused. They were given the symbol of a "Rising Sun". It is impossible to hold that because one party has not been given symbol of cow, calf and milkmaid, therefore, the symbol of cow and calf bc;;omes a religious symbol. The High Court on the evidence adduced by the respondent rightly came to the conclusion that there was no evidence to prove that the cow and calf is a religious symbol. The High Court rightly held that cow and calf is not a religious symbol. • A B c D E F G H 444 SUPREME COURT REPORTS [1976] 2 s.c.R. A B The finding of the High Court that the appellant held herself out to be a candidate from 29 December, 1970 is set aside because Jaw is tilat the appellant became a candidate only with effect from the da.te oi nomination which was 1 February, 1971. The finding of the High Cpurt that the resignation of Yashpal Kapur did not become effective until it was notified in the Gazette is also set aside because under ti;e Jaw the resignation became effective from 14 January, 1971. The finding of the High Court that the appellant committed corrupt practice in breach of section 123 (7) of the 19 51 Act is also repelled by the legislative changes and is, therefore, set aside. The order of disqualif.cation of the appellant is also set aside. c For t11e foregoing reasons the contentions of the appellant succeed and the contentions of the respondent fail. The appeal is accepted. The judgment of the High Court appealed against is set aside. The · cross objection of the respondent is dismissed. There will be no order as to costs. D E F G H KHANNA, J. Civil Appeal No. 887 of 1975 has been filed by Smt. Indira Nehru Gandhi (hereinafter referred to as the appellant) against the judgment of the Allahabad High Court whereby election petition filed by Shri Raj Narain respondent No. 1 (hereinafter referred to as the respondent) to question the election of the appellant to Lok Sabha from Rae Bareli Parliamentary constituency was allowed and the election of the appellant was declared void. The appellant was found guilty of having committed corrupt practices under section 123(7) of the Representation of the People Act, 1951 (hereinafter referred to as the RP Act) and as such was stated to be disqualified for a period of six years in accordance with section 8A of the RP Act. Cross appeal No. 909 of 1975 has been filed by Shri Raj Narain against the ment of the High Court in so far as it decided certain issues against the rcspomlent. The President of India called upon different constituencies in the country to elect members to the Lok Sabha by notification dated January 27, 1971 under section 14(2) of the RP Act. Last date for filing nomination papers was fixed as February 3, 1971 for Rae Bareli conc,tituency by the Election Commission. The appellant filed her nomination paper on February 1, 1971. The appellant was for a num ber of }ears before the election Prime Minister of India and is since then continuing to hold that office. Yashpal Kapur who was previously a gazetted officer in the Government of India holding the post of Officer on Special Duty in the Prime Minister's Secretariat and who subsequent ly submitted his resignation, was appointed the election agent of the appellant. The signed form about the appointment of Yashpal Kapur as election agent was submitted to the Returning Officer on February 4, 1971, the date of scrutiny. The date on which Yashpal Kapur submitted his resignation and the same became effective is, however, a matter of controversy between the parties. The appellant, who was a candidate of the Indian National Congress (R), was allotted the party symbol of cow and calf. Polling took place in the first week of March on March 1, March 3 and March 5, 1971. The appellant and SMT. lNDIRA GANDHI v. RAJ NARAlN (Khanna, !.) 445 two other respondent were the principal contestants. There were candidates but we are not concerned with them. The result of election was declared on March 10, 1971. ·The appellant got 1,83,309 votes, while the respondent secured 71,499 votes and former was declared elected. The respondent thereafter filed election petition on April 24, 1971 to challenge the election of the appellant. Apart from some grounds which were not pressed, the election of the appellant was assailed on the following grounds : A B ( 1) The appellant held herself out as a prospective candidate from the Rae Bareli constituency immediately after dissolution of the Lok Sabha on December 27, 1970, and for furtherance of her election prospects, she, obtained and procured the assistance of Yashpal Kapur who was at that time holding the post of Officer on Special Duty. The appellant thus committed corrupt practice under section 123(7) of the RP Act. c (2) The appellant and her election agent procured the assis tance of members of armed forces of the Union for fur therance of her election prospects inasmuch as the mem bers of the armed forces arranged planes and helicopters of the Air Force at her instance for her flights to enable. D her to address meetings in her constituency. The appel-· lant thereby committed corrupt practice under section 123 (7) of the RP Act. (3) The appellant and her election agent obtained the assis tance of a number of gazetted officers and members of the police force for the furtherance of her election prospects inasmuch as the services of the District Magistrate, Super intendent of Police, Rae Bardi and the Home Secretary. Uttar Pradesh Government were utilised for the purposes of the construction of rostrums and installation of speakers at various places within the constituency where the appellant addressed her election meetings as also for the _purpose ~f making arrangements of barricading and postmg of police personnel on the routes by which the appel lant was to trnvel in her constituency and at the places ~~ere she wa~ _to address meetings, in order to give pub licity to her v1s1ts and thus attract lame crowds. The appellant was thereby stated to have committed corrupt practice under section 123(7) of the RP Act. (4) Yashpal Kapur: election agent of the appellant and her o!he~ agents ~1th the consent of Yashpal Kapur, freely d1stnbute~ quilts, blankets, dhotis and liquor among the voters to mduce. them to vote for her and app~llant committed corrupt practice of briberv under sect10n 123 (1) of the RP Act. thereby ' E F G (5) The appellant an~ )ler election agent made extensive appeals t? the religious symbol of cow and calf and there by committed corrupt practice under section 123(~) of the RP Act. - H 1 A B c D E F G H 446 SUPREME COURT REPORTS [1976] 2 s.c.R. (6) Yashpal Kapur and some other persons with his consent hired and procured a number of vehicles conveyance of electors to the polling stations and thereby committed corrupt practice under section i23(5) of the RP Act. (7) The appellant and her election agent incurred or authorised expenditure in contravention of section 77 of the RP Act section and thereby committed corrupt practice under 123(6) of the RP Act. The appellant in her written statement denied the various allega tions levelled against her and pleaded that Yashpal Kapur resigned from his post on January 13, 1971 and his resignation was accepred with effect from January 14, 1971. Notification dated January 25, 1971 was issued by the Prime Minister's Secretariat in that connection It was added that P. N. Haksar, then Secretary to the Prime Minister, resignation was told Yashpal Kapur on the same day on which the tendered that it was accepted and that formal orders would follow. Yashpal Kapur became the election agent of the appellant on Febru ary 4, 1971. During the period he was a gazetted officer in the Gov ernment of India, he did not do any work in furtherance of the appel·· !ant's election prospects. Regarding the use of planes and helicopters of the Air Force, the appellant admitted that on February 1, 1971 she went by an Indian Air Force plane from Delhi to Lucknow from where she went by car to Rae Bareli, addressing meetings enroute. It was further admitted that on February 24, 1971 the aprellant went by helicopter of the Indian Air Force to Gonda on regular party work and that from there she went by car to Lucknow, Unnao and Rae Bareli addressing public meetings in several constituencies besides her own. The appellant referred to the Pillai Committee Report and the Office Memoranda issued by the Government of lndia aqd asserted that thl.l aforesaid flights were made by her in accordance with them. It was added that under the rules, bills for those flights were to he paid by the All India Congress Committee and most of them had already been paid. According to the appellant, neither she nor did her election agent solicit, reqmre or order the use of Air Force planes and the Gov ernment of India provided the planes as part of their normal duty. The appellant denied having obtained the assistance of the District Magistrate and the Superintendent of Police, Rae Barcli as also that of the Home Secretary, UP Government for any of the puq.1oses men tioned in the petition. The appellant in this context referred to instructions issued by the Comptroller and Auditor General of India. She pleaded that arrangements for posting of police on routes which she followed and the arrangements of rostrums were made by In the State Government itself in compliance with those instructions. regard to the loudspeakers, she pleaded that those were arranged by the District Congress Committee and not by the officers of the State It was denied that any directions or instructions in that Government. regard were issued by the appellant or her election agent. The allega tions regarding the distribution of blankets, dhotis and liquor were stated to be absolutely false. As regards the symbol of cow and calf, the appellant stated that it was not a religious symbol and that it was SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, /.) 447 >· " • wrong that extensive appeals were made by her or her election agent to that symbol. The appellant added that she and her election agent Indian National merely informed the voters that the symbol of the Congress (R) was cow and calf and that the voting mark should be put against that symbol. The decision of the Election Commission allotting the symbol of cow and calf to her party was final and the same could not, according to the appellant, be made a ground of re- attack nor could the court go into that question. The allegation garding hiring and procuring of vehicles and the use thereof for con veyance of the voters to the polling stations was described by the ap- . pellant as false. Likewise, she denied the allegation that she or her election agent incurred expenditure in excess of the prescribed limit. Following issues were framed in the case : "(1) Whether respondent No. 1 obtained and procured assistance of Y ashpal Kapur in furtherance ·ot the pros pects of her election while he was still a Gazetted Officer If so, from what in the service of Government of India ? date? (2) Whether at the instance of respondent No. 1 members of the Armed Forces of the Union arranged Air Force planes and helicopters for her, flown by members of the Armed Forces, to enable her to address election meetings on 1-2-1971 and 25-2-1971, and if so, whether this con stituted a co'rrupt practice under section 123 (7) of Representation of the People Act ? ( 3) Whether at the instance of respondent No. 1 and her elec- tion agent Y ash pal Kapur, the District Magistrntc of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of U.P. Government arranged ~ostrums, loudspeakers and barricades to be set up and for members of the Police Force to be posted in connection with her election tour on 1"2-197f and 25-2-1971 · and if so, whether this amounts to a corrupt practice ~nder section 123(7) of the Representation of the People Act? ( 4) Whether quilts, blankets, dhotis and liquor were distri buted by agents and workers of respondent No. 1, with the consent of her election agent Yashpal Kapur, at places and on the dates mentioned in Schedule A of the Petition in order to induce electors to vote for her ? (5) Whether the particulars given in paragraph 10 and Schedule A of the Petition are too vague and general to afford a basis for allegations of bribery under section 123 ( 1) of the Representation of the People Act ? (6) Whether by using the symbol cow and calf, which had been allotted to her party by the Election Commission in her election campaign the respondent No. 1 was guilty of making an appeal to a religious symbol and committed a \ ' .. ' A. B' c ]) E F G· 448 SUPREME COURT REPORT'S [1976] 2 S.C.R. corrupt practice as defined in section 123 ( 3) of the Re presentation of the People Act ? (7) Whether on the dates fixed for the poll voters were con veyed to the polling stations free of charge on vehicles hired and procured for the purpose by respondent No. 1 's election agent Yashpal Kapur, or other persons with his consent, as detailed in Schedule B to the Petition ? (8) Whether the particulars given in paragraph 12 and Sche dule B of the Petition are too vague and general to form a basis for allegations regarding a corrupt practice under section 123 (5) of the Representation of the People Act? (9) Whether respondent No. 1 and her election agent Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by section 77 of the .Representation of the People Act, read with rule 90, as detailed in para 13 of the Petition ? (10) Whether the petitioner had made a security deposit in ac cordance with the rules of the High Court as required by section 117 of the Representation of the People Act ? D (11) To what relief, if any, is the petitioner entitled?"· Subsequent to the framing of the above issues, the additional issues were framed in pursuance of the judgment of Court in an appeal against an interlocutory order of the High Court : following "(1) Whether respondent No. 1 obtained and procured assistance of Yashpal Kapur in furtherance of the pros pects of her election while he was still a Gazetted Officer in the service of the Government of India '? If so, from what date? (2) Whether respondent No. 1 held herself out as a candidate from any date prior to 1-2-1971 and, if so, from what date? (3) Whether Yashpal Kapur continued to be in the service of Government of India from and after 14-1-1971 or which date ?" During the pend ency of the election petition in .the ·High. Court, :section 77 of the RP Act was amended by an Ordmancc which was subsequently replaced by Act 58 of 1974 (hereinaft~r referre~ to as the 1974 amending Act or Act 58 of 1974). The said amendmg Act inserted two explanations at the end of sub-section ( 1) of section 77 of the RP Act. The material part of the explanations reads as under : H "Explanation 1.-Notwithstanding any judgmen!, or.der or decision of any court to the contrary, any expenditure ~ncurred or authorized in connection with the election o[ a candidate by a political party or by any other association or body of persons • ·- • .. ' • • • • • SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, !.) 449 or by any individual (other than the candidate or his elec tion agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the elec tion incurred or authorized by the candidate or by his election agent for the purposes of this sub-section : Provided .................... . Explanation 2.-For the purposes of Explanation 1, 'political party' shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force." The above amendment in section 77 had a bearing on the allegation The respondent filed which was the subject-matter of issue No. 9. writ petition challenging the validity of the amending Act. c Issues 5, 8 and 10 were found The High Court decided issues 2, 4, 6 and 7 in favour of the appel lant and against the respondent. favour of the respondent and against the appeHant. On issue No. 9 the finding of the High Court was that the total amount of expenditure incurred or authorized by the appellant or her election agent, together with the expenditure proved to have been incurred by the party or by D the Srate Government in connection with the appellant's election amounted to Rs. 31,976.47 which was sufficienily below the pres cribed limit of Rs. 35,000. The appellant as such \vas held not guilty of any corrupt practice under section 123 ( 6) of the RP Act. As the respondent was found to have failed to prove that the expenses of the appellant or her election agent, together with the expenses found to have been incurred by the political party and the State Government in connection with the appellant's election exceeded the prescribed limit, the High Court held that no ground had been made out for in quiring into the validity of the 197 4 amending Act. The writ peti- tion filed by the respondent was accordingly dismissed. E On additional issue No. 2, the finding of the High Court was that from the Rae Barcli the appellant held herself out as a candidate Issue No. 3 was Parliamentary constituency on December 29. 1970. decided by· the High Court against the appellaut. It was held that the appellant obtained the assistance of the officers of the UP Government, particularly the District Magistrate, Superintend<:nt of Police, the Exe for con cutive Engineer PWD and the Engineer Hydei Department struction of rostrums and arrangement of supply of power for speakers in the meetings addressed by her on February 1, 1971 and February 25., 1971 in furtherance of her election prospects. The appellant, as such, was found guilty of corrupt practice under section 123(7) of the RP Act. On additional issue No. 3, the High Court found that Yashpal Kapur continued to be in the service of the Gov ernment of India till January 25, 1971, which was the date of the noti fication regarding the acceptance of Yashpat Kapur's resignation. The High Court referred to the fact that according to the notification resig- nation of Yashpal Kapur had been accepted with effect from January_ 14, 1971 and observed that the order accepting the resignation was passed on January 25, 1971 and till that order was P<issed, the status of F G H 450 SUPREME COURT REPORTS (1976] 2 S.C.R. A Yashpal Kapur continued to remain that uf a Government servant despite the fact that when that order was passed it was given retrospec tive effect so as to be valid from January 14, 1971. As regards issue No. 1 and additional issue No. 1, the High Court held that the appellant obtained and procured the assistance of Yashpal Kapur dur ing the period from January 7 to 24, 1971 wh:;n Yashpal Kapur was still a gazetted officer in the service of the Government of India in the furtherance of her election prospects. B issue No. 2 and additional As a result of its findings on issues No. \ issue No. 1 read with additional issue No. 1, additional No. 3, the High Court allowed the petition and declared the election of the appellant to the Lok Sabha to be void. The appellant was found guilty of having committed corrupt practice under section 123(7) of the RP Act by having obtained the assistance of gazetted officers of the uP Government, viz., the District Magistrate and the Superinten dent of Police Rae Bareli, the Executive Engineer PWD Rae Bareli and Engineer Hyde! Department Rae Bareli in furtherance of her elec tion prospects. The appellant was further found guilty of having com mitted another corrupt practice under section 123 ( 7) of the RP Act by having obtained the assistance of Yashpal Kapur, a gazetted olliccr in· the Government of India holding the post of Officer on Special Duty in Prime Minister's Secretariat, for the furtherance of her election prospects. The appellant, it was accordingly observed, stands dis qualified for a period of six years from the date of the order in accor dance with section SA of the RP Act. The writ petition, as mentioned earlier, was , dismissed. An appeal against the judgment of the learneJ single Judge of the High Court dismissing the writ petition is pendin~ before the High Court. · During the pcndency of these appeals, Parliament passed the Elec tion Laws (Amendment) Act, 1975 (Act 4G of 1975) (hereinafter referred to as 1975 amending Act or (Act 40 of 1975) and the same was published in the Gazette of India Extraordinary dated August 6, 1975. Section 2 of the 1975 amending Act substituted a new section tor section 8A in the Act. According to the: new section, the case of every person found guilty of a corrupt practic<: by an order under secuon 99 shall be' submitted as soon as may be, after such order takes effect to the President for determination of the question as to whether such person shall be disqualified and if so, for wi1at period. not ex ceeding six years. It is also provided that the person who stands dis qualified may before the expiry of the period of disqualification submit a petition to the President for the removal or such disqualification for the unexpired portion of the said period. The President shall give his decision on such petition after obtaining tl1e opinion of the Election Commission and in accordance with such opinion. Sections 3, 4 and 5 of the 1975 amending Act deal with other consequential matters relating to disqualification, and it is not necessary purpose of the present case to go into them. Secdons 6 and 7 amended sections 77 and 79 of the RP Act and we shall refer to ihem presently. c D E .F G H • • • SMT. INDIRA GANDHI v. RAJ N.\RA\N (Khanna, J.) 451 Same is the position of section 8 of the amending Act which .duced changes in section 123 of the RP Ac~. Secti<'.n 9 amended s~c­ retrospective tion 171A of the Indian Penal Code. Sect10n 10 gives ·effect to sections 6, 7 and 8. Sections 6, 7, 3, 9 and I 0 of Act 40 of 1975 rt>ad as under: A "6. In section 77 of the principal Act, in sub-sectiJn B (1),- • (a) for the words 'the date of publication of the notifica the words '!he date on tion calling the election', which he has been nominated' shall be substituted; ( b) after Explanation 2, the following Explanation shall be inserted, namely : - 'Explanation 3.-For the removal of doubt, it is hereby respect of any declared that any expenditure arrangements made, facilities provickd or any other act or thing done by any person in the service of the the classes Government and belonging mentioned in clause ( 7) of discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the ~lection incurred or authorized by a candidate or by his election agent for the purposes of this sub-section.' to any of section 123

7. In section 79 of the principal Act, for clause (b), the follow- ing clause shall be substituted, namely:- '(b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election.' ·

8. In section 123 of the principal Act.- (a) in clause .(3), the following proviso shall be inserted at the end, namely : - ) 'Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.' (b) in clause (7), the following proviso shal lbe inserted <tt the end, namely : - 'Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid in the discharge or purported discharge of his official duty; makes any arrangements or provides any facilities or does any othe~ act ·or thing, for, to, or in relation to, any candi date or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such c D E F G H 4 • A B c D E 452 SUPREME COURT REPORTS [1976] 2 s.c.R. arrangements, facilities or act or thing shall nut be deemed to be assistance for the furtherance of the prospects of that candidate's election.' · (c) in the explanation at the end, the foHowing shall be added, namely: '(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a pers'On in the service of the Central Government (including a person serving in connection with the administration of a Union Territory) or of a State Government shall · be conclusive proof- (i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and (ii) where the date· of taking effect of such appoint ment, resignation, termination of service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismis ~al or removal from service, such person ceased to be in such service with effect from the said date.'

9. In the Indian Penal Code, in section 171A, for clause (a), the following clause shall be substituted, namely :- '(a) 'candidate' means a person who has been numinat ed as a candidate at any election.' F

10. The amendments made by sections 6, 7 and 8 of this Act in the principal Act shall also have retrospective operation so as apply to and in relation to any election held before the commence , ment of this Act to either House of Parliament or to either House or the House of the Legislature of a State- G H ( i) in respect of which any election petition may be presented after the commencement of this Act; or (ii) in respect of which any election petition is pen ding in any High Court immediately before such com mencement; or (iii) in respect of which any election petition has been decided by any High Court before such commencement but no appeal has been preferred to the Supreme Court against the decision of the High Court before such com mencement and the period 'Of limitation for filing such appeal has not expired before such commencement; or I SMT. INDIRA GANDHI v, RAJ NARAIN (Khanna, J.) 453 (iv) in respect of which appeal from any order of any High Court made in any e~ec~ion petit~on und.er section 98 or section 99 of the prmc1pal Act 1s pendmg before the Supreme Court immediately before such com_mence ment." It is submitted by Mr. Shanti Bhushan on behal( of the respon dent that the amendments made in the RP Act have an impact upon five out of the seven grounds which were set up by the respondent to assail the election of the appellant. On August 10, 1975 the Constitution (Thir.ty-J?-inth Amendment) Act, 1975 was published. A number of const1tut1onal change were made by the Constitution Amendment Act. We are, however, c~n­ cerned with section 4 of the Constitutional Amendment Act which inserted article 329A in the Constitution after article 329. Article 329A reads as under: "329A 'Special provision as to elections to Parliament in the case of Prime Minister and Speaker.-(1) Subject to the provisions of Chapter II of Part V [Except sub-clause ( e) of clause (1) of article 102], no election- (a) to either House of Parliament of a person who, holds the office of Prime Minister at the time of such . election or is appointed as Prime Minister after such election; (b) to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Spe·aker for that House after such election; shall be called in question, except before such authority (not bei.ng any such authority as is referred to in clause (b) of article 329) or body and in such manner as may be provid- ed for by or under any law made by Parliament and any such law may provide for all other matters relati'ng to doubts and disputes in relation to such election including grounds on which such election .may be questioned. (2) The validity of any such law as is referred to in clause ( 1) and the decision of any authority or body under such law shall not be called in question in any court. (3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while a•a election petition referred to in clause (b) of article 329 in respect of his election to either House of Parliame•at or, as the case may be, to the House of the People is pending, such elec- tion petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to 8-L126SCI/76 A B c D E F G H ' A B c D E F G H SUPREME COURT REPORTS (1976] 2 S.C.R. the office of the Speaker of the House of the People, but such election may be cnlled in question under a'ay such law as is referred to in clause ( 1) . ( 4) No law made by Parliament before the commence ment of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause ( 1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void u111der any such law and notwithstanding any order made by any court, be fore such commencement, declaring such election to be void, such election shall continue to be valid in all respects and such order any such order and any finding on which based shall be and shall be deemed always to have been void and of ,no effect. (5) Any appeal or cross appeal against any such order of any court as is referred to in clause ( 4) pending imme diately 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). ( 6) The provisions of this article shall have effect not withstanding anything cont~ined in this Constitution." Section 5 of the above Constitution· Amendment Act inserted the Ninth Schedule to the Constitution a number of enactments cluding the RP Act as also Acts 58 of 1974 and 40 of 1975. At the hearing of the appeal Mr. Sen on behalf of the appellant has relied upon clause (4) of the new article 329A and has conte•1d ed that that clause clearly applies to the present C"ase. It is urged that in view of that clause no law made by Parliament before the coming into force of the Constitution (Thirty-ninth Amendment) Act, 1975 i.e., before August 10, 1975, in so far as it relates to the shall apply election petitions and matters connected or shall be deemed ever relation to the election to the Lok Sabha of the appellant who being Prime Minister is one of the persons referred to in clause (1) of that article. It is further submitted that in view of that clause, the election of the appellant shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law. Mr. Sen also adds that notwithstandin!! the order made by the High Court before such commencement declaring election of the appellant to be void, her election shall continue to be valid in all respects and any such order and anv finding on which such order is based_ shall be and shall be deemed always to have been therewith to or to have applied SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 45 5 void and of no effect. Submission is consequently made tliat in view of the mandate contained in clause ( 5) of the article, the appeal filed by the appellant and the cross appeal filed by the respondent should be disposed of in conformity with the provisions of clause ( 4). • • In reply Mr. Shanti Bhushan on behalf of the respondent has not c;ontroverted, and in our opinion rightly, the stand taken by Mr. Sen that clause ( 4) of the article applies to the facts of the present case . He, however, contends that section 4 of the Constitution Amendment Act which has inserted article 329A in the Constitution is invalid. The validity of the above constitutional amendment has been challeng ed by Mr. Shanti Bhushan on the following two grounds : A B • • ( 1) The above constitutional amendment affects the basic struc ture or framework of the Constitution and is, therefore, beyond amending power under article 368. c (2) The Constitution Amendment Act was passed in a session of Parliament after some members of Parliament had been unconstitu tionally detained and thus illegally prevented from influencing the views of other members present at the time. the above Act was passed. This groun<l, it is urged, also affects the validity of the amending Act .40 D of 1975. Article 329A deals with election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election and the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such electio.n. According to clause (1) of article 329A, no election of persons mentioned above shall be called in question, except before such authority or body and in such manner as may be provided for by or under any law made by Parlia ment. It is made clear that the authority before which such election shall be called in question would not be the one as referred to in clause (b) of article 329. The law to be made by Parliament under clause ( 1) may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned. The above law shall be subject to the provisions of clause ( 1) of article 102 except sub-clause ( e). The law made under clause ( 1) cannot, therefore, remove the disqualification for being chosen a member of either House of Parliament because of that person holding an office of profit or because of his unsoundness of mind or because of his being an un discharged insolvent or because of his being not a citizen of India, or because of his having voluntarily acquired the citizenship of a foreign State, or because of his being under any acknowledgment of alle giance or adherence to a foreign State, as contemplated by sub-clauses (a) to ( d) of clause ( 1 ) of article 102 of the Constitution. The law made under clause (1) of article 329A would not, however, be subject to clause ( e) of chuse ( 1) of article 102, according to which a person shall be disqualified for being chosen as and for being, a member of either House of Parliament if he is so disqualified by or F G H 456 SUPREME COURT REPORTS [1976] 2 S.C,R. A B c D E is referred the crucial clause for under any law made by Parliament. According to clause (2) ot article 329A, the validity of a law referred to in clause ( 1) and the decision of any authority or body under such law shall not be called in question in any court. Clause (3) provides for the abatement of an election petition which is pending in respect of the election of any person who is appointed as Prime Minister or chosen as Speaker of It is the House of the People during the pendency of the petition. further provided that the election of such person can be called in clause ( 1) of question under any such law as article 329A. Clause ( 4) the present case .. According to this clause, no law made by Parliament be fore the commencement of the Constitution (Thirty-ninth Amend ment) Act in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have ap plied to or in relation to the election of any of the persons mentioned above to either House of Parliament. The remaining part of It is provided in clause ( 4) clause deals with some_ further matters. that the election of the aforesaid persons shall not be deemed to be void or ever to have become void on any ground on which election could be declared to be void or has, before such commence ment, been declared to be void under any such law. It is further provided that notwithstanding any order made by any court before the commencement of the Constitution (Thirty-ninth Amendment) Act declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. According to clause ( 5) , any appeal or cross appeal against any such order as is referred to in clause ( 4) pending immediately .before the commencement of the Constitution (Thirty-ninth Amendment) Act, before the Supreme Court shall be disposed of in conformity with the provisions of clause ( 4) . Clause (6) states that the provisions of article 329A shall take effect not withstanding anything contained in the Constitution. F G H The proposition that ·the power of amendment under article 368 does not enable Parliament to alter the basic structure or framework of the Constitution was laid down by this Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharathi v. State of Kera/a (1). Apart from other reasons which were given in some of the judgments of the learned Judges who constituted the majority, the majority dealt with the connotation of the word "amendment". It was held that the words "amendment of the Constitution" in article 368 could not have the effect of destroying or abrogating the basic structure of the Constitution. Some of us who were parties to case took a different view and came to the conclusion that the words "amendment of the Constitution" in article 368 could not have the effect of destroying or abrogating the basic structure of the Constitu tion. Some of us who were parties to that case took a different view and came to the conclusion that the words "amendment of the Constitution in article 368 did not admit of any limitation. Those (!) [1973] Sup. S.C.R. 1. • • • SMT. INDIRA ,GANDill v. RAJ NARAIN (Khanna, J.) 457 o~ us who were in ~e minority !rt Kesavana_nda's case (supra) may still hold the same view as was given expression to in that case. For the purpose of the present case, we shall have to proceed in accor dance with the law as laid down by the majority in that case . • .A Before dealing with the question as to whether the impugned amendment affects the basic structure of the Constitution, I may make it clear that this Court is not concerned with the wisdom behind or · the propriety of the impugned constitutional amendment. These . are matters essentially for. those who are vested with the authority to make the constitutional amendment. All that this Court is concern ed with is the constitutional validity of the impugned amendment. I may first deal with the second contention advanced by Mr. Shanti Bhushan. According to him, the impugned constitutional amendment and the amending Act of 1975 were passed in sessions of Parliament. wherein some members, including the respondent, could not be present because they had been illegally detained. The that those measures were passed by the requisite majority has not been questioned by the learned counsel but he submits that if the abovementioned members had not been detailed and had not been prevented from attending the sittings of. Parliament, they could have influenced the other members and as such it is possible that t.he impugned Constitution Amendment Act and the 1975 RP amend ing Act might not have been passed. Mr. Shanti Bhnshan accord ingly asserts tjlat the sittings of the House of Parliament in which the above mentioned two measures were passed were not legal sittings. Any measure passed in such sittings, according to the learned counsel, · cannot be considered to be a valid piece of constitutional amendment or statutory amendment. There is, in my opinion, no force in the above submission. The immunity proposition that a member of Parliament cannot claim from being detailed under a law relating to preventive detention does not now admit of much donbt. The privileges, powers and the im munities of the members of the two Houses of Indian Parliament as well as of the Indian legislatures are the same as those of the mem bers of the House of Co=ons as they existed at the time of the com mencement of the Constitution; ·· The position about the privileges of the members of the House of Commons as h obtained in the United Kingdom at the relevapt time has been stated in Erskine May's Par liamentary Practice, 18th Ed. (p. 100) as under : ' "The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the ad ministratio1,1 of criminal justice or emergency legislation." • •• • .. • • The above observations were relied. upon by this Court in the case of K .. Anandan Nambiar & Anr. v. Chief Secretary, Government of Madras & Ors.(>). The petitioners in that case were members of Parliament. They were detained by orders passed by the State Government under rnle 30(1 )(b) of the Defence of India Rules, (1) [1965] 2 S.C.R. 406. B c D E F G H A B c D E F G H 458 SUPREME COURT REPORTS [1976] 2 s.c.n.

1962. They challenged the validity of the orders of detention, inter alia, on the ground that rule 30(1) (b) was invalid because a legis lator cannot be detained so as to prevent him from exercising his c0nstitutional rights as legislator while the legislative chamber to which he belongs is in session. This Court rejected that contention and held that the true constitutional position is that so far as a valid order of detention is concerned, a member of Parliament can claim no special status higher than that of an ordinary citizen and that he is as much liable to be arrested and detained under it as any other citizen. It was also held that if an order of detention validly prevents a mem ber from attending a session of Parliament, no occasion would arise for the exercise by him of the right of freedom of speech. Question as to whether a member of Parliament has been validly detained under _a law relating to preventive detention can, in my opi nion, be appropriately gone into in proceedings for a writ of habeas corpus. Such question cannot be collaterally raised in proceedings like the present wherejn the cou_rt is concerned with the validity of a Constitution Amendment Act and an Act to amend the Representation of the People Act. In deciding a case before it the court should de cide matters which arise directly in the case. A court should resist induce it to decide a matter which the attempt of a party to though canvassed during arguments is only incidental and collateral and can appropriately be dealt with in separate proceedings. The contention advance_d by Mr. Shanti Bhushan 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 proceed ings 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 mea sures 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 parti It has not been disputed cipating in the discussions in those Houses. before us, as already mentioned, that the impugned Constitution Amendment Act and the statutory amendment Act were passed by the requisite majority. It is not the case of the respondent that the number of the detained members of Parliament was so large, that if they had voted against the impugned measures, the measures would Indeed, according to the affidavit filed during not have been passed. the course of arguments, the number of members of the Lok Sabha who were detained was 21 and of the Rajya Sabha the number was 10. An amendment of the Constitution under article 368, it is note worthy, has apart from the requirement in certain cases o[ ratifica tion by the State legislatures, to be passed in each House of Parlia ment by majority of the total membership of that House and bv a majority of two-thirds of the members of that House present - and voting. According to cllluse ( 1) of article 100 of the Constitution, save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be deter- ·• ~· • .. .. " ..... • . - •• .. - • ' . SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, !.) 459 (2) mined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes. Clause (2) of that article provides that either House of Parliament shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings Parliament ~hail be valid notwithstanding that it is discovered subse quently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings. Further, it is provided in clause ( 1) of article 122 that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleg.::d irregularity of procedure. All this would show that the framers of the Constitution were anxious to ensure that the procedural irregu larities and other grounds like those mentioned in clause article 100 should not vitiate the validity of proceedings of Parlia ment and that it would not be permissible to call in question proceedings on such grounds. The observations on page 456 in the case of Speciai Reference No. 1 of 1964(i1) that if impugned proceedings of a legislature are illegal and unconstitutional and not merely irregular the same can be scrutinised in a court of law do not, in my opinion, warrant the inference that a court can hold the pro ceedings of a legislature to be not valid and constitutionai by going into the question as to whether the detention of any member who was prevented from being present in the sitting of the legislature on account of hi~ detention was or was not in accordance with Jaw. The acceptance of the above submission of Mr. Shanti Bhushan would necessarily result in a situation that whenever a law is made by Parliament, it would be open to a person affected by that law to question the validity of that law by asking the court to examine the validity of detention of each of the members of Parliament who were under detention at the time the said law was passed even though those members do not themselves assail the validity of theit· deten tion. It is plain that it would not be possible for the court in such collateral proceedings to record a finding about the validity of detention of the members beqmse the full material having a bearing on the validity of the detention would normally be, apart from the authority passing the order for detention, only with the person order It would plainly be ed to be detained or his friends and relatives. hazardous to record a finding without such material and a court of Jaw, in my opinion, should decline to record such a finding in colla teral proceedings. Till such time as a finding is recorded in appro priate proceedings about the validity of the detention of the members of Parliament, the court would have to proceed upon the assumption that the detention has not been shown to be invalid. · According to clause (3) of article 105 of the Constitution whic~ a sh<;'r.t reference has been made earlier, the powers, privlleges and 1mmu111t1es of each House 0£ Parliament, and of the members and the committees of each House, shall be such as may from time (1) [1965} 1 S.C.R. 413. B c D E F G H '• - " A B c D E F G 460 SUPREME COURT REPORTS [1976] 2 s.c.R. lo lime be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commence ment of this Constitution. No law contemplated by clause l3) has been made by the Parliament in India and as such we have to find out the powers, privileges and immunities of the House of Commons in the lrnited Kingdom at the relevant time. In the case of Brad laugh v. Gossett (l) the plainttiff, having been returned as member for the borough of Northampton, required the Speaker of the House of Commons to call him to the table for the purpose of taking oath. In consequence of something which had transpired on a former occa sion the Speaker declined to do so. The House of Commons then upon motion resolved "that the Serjeant-at-Arms do exclude Mr. Bradlaugh (the plaintiff) from the House until he shall engage not In an action further to disturb the proceedings of the House." against the Serjeant-at-Arms praying for an injunction restrain him from carrying out the resolution, the court held that this being a matter relating to the internal management .of the procedure of the House of Commons, the court had no power to interfere. Dealing with tht rights to be exercised within the walls of the House, Stephen J. observed that those rights must be dependent upon the resolutions of the House. He also added that there was no appeal decision of the House of Commons. Stephen J. in the course of the judgment also observed : " .... for the purpose of determining on a right to be exercised within the House itself, and right of sitting and voting, the House and the House alone could interpret the statute but .... as regarded rights to be exercised out of and independently of the House, such as the right of suing for a penalty for having sat and voted, the statute must be interpreted by this Court independently cf the House." in particular The above passage has been cited on page 83 in Erskine May's a Parliamentary Practice, 18th Ed. with a view to show that it right of each House of Parliament to be the sole judge of the lawful It would follow from the above that the ness of its own proceedings. courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. The Act of detaining a person is ,normally that of an outside It would 'certaiulv agency and not that of the House of Parliament. 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 assembl ing and functioning. H The matter can also be looked at from another angle. Gazette copies of the Election Laws Amendment Act, 1975 (Act 40 of 1975) (1) 12 Q.B.D. 271 (1883-84). • \o •• ~ ~4 • " A - ,, • ) • SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 4 61 In the face of the publication 1975 have and the Constitution (Thirty-ninth Amendment) Act, been preduced oefore us. Gazette of the above mentioned two Acts this Court must assume It may be pertinent in this that those two Acts were duly passed. context to refer to the position in the United States where it was laid down in the case of Marshall Field & Co. v. John M. Clark(1) as 1mdei: ;'The signing by the Speaker of the House of Representa tives and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses that such bill has passed Congress; and when the bill, thus attested receives the approval of the President, and is depo sited in the public archives, its authentication as a bill that has passed Congress is complete and unimpeachable. An enrolled Act thus authenticated is sufficient evidence of itself that it passed Congress." In the case of a constitutional amendment which requires ratification by the States, the position was stated by Brandeis J. in the case of Oscar Leser v. J. Mercer Garnett(2) as follows : "The proclamation by the Secretary certified that, from official documents on file in the Department of State, it ap peared that the proposed Amendment was ratified by the legislatures of thirty-six states, and that it 'has. become valid to all intents and purposes as a part of the Constitution of the United States.' As the legislatures of Tennessee and of West Virginia had power to adoPt the resolutions of ratifica tion, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certi fied to by his proclamation, is conclusive upon the courts." I am, therefore, of the view that the constitntional validity of the Constitution Amendment Act and the 1975 -Act amending the Re presentation of the People Act canpot 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. We may now deal with clause ( 4) of article 329A which has been added by the Constitution (Thirty-ninth Amendment) Act, 1975. It is necessary to clarify at the outset that we are concerned in the present case only with the constitutional validity of clause ( 4) and not with that of the other clauses of that article. I, therefore, express no opinion about the validity of the other clauses of article 329A. Clause ( 4) consists of four p_arts : (i) No law made by Parliament before the commence ment of the Constitution (Thirty-ninth Amendment) it relates to the election Act. 1975 in so far as A B c D E F G H J ) (1) 143 U.S. 649. (2) 66 L. Ed. 505. '• • • • • A B c D E F G H •162 SUPREME COURT REPORTS (1976) 2 S.C.R. petitions and matters connected therewith shall ~pply o~ shall be deemed ever to have applied to or m relat10n to the election of any such person as is either House of ( 1) referred to in clause Parliament: (ii) and such election shall not be deemed to be void or ever to . have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law; (iii) i:\nd notwithstanding any order made by any court before such commencement declaring such election to be void, such election shall continue to be valid in all respects; (iv) and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. In so far as part (i) is concerned, I find that it relates to a matter which can be the subject of an ordinary legislation or a constitutional amendment. According to this part, no law made by Parliament before the commencement of the Constitution (Thirty .. ninth Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply and shall be deemed ever to have applied to or in relation to the election of any such person as is re ferred to in clause (1) to either House of Parliament. A law in the above terms can validly be made by a legislature as well as by a cons ~ituent authority. The fact that the above law would have retrospective effect would not detract from the competence of the legislature or constituent authority to make such a law. It is well-settled that it is permissible for a legislature to make a law with retrospective effect. The power of a: legislature to make a law with retrospective effect is not curtailed or circumscribed by the fact that the subject matter of such retrospective law is a matter relating to an election dispute [5ee State of Orissa v. Bhupendra Kumar Bose(1) and Kanta Kathuria v. Manak Chand Surana(2)]. Detailed reference to these cases would If a legislature can be made at the appropriate stage subsequently. pass legislation in respect of matters relating to an election dispute with a retrospective effect, the constituent authority, which is a kind of super-legislature, would a fortiori be entitled to do so. Part (ii) of clause ( 4) spells out the consequence \vhich flows from If the previous law in so far as it relates to part (i) of the clause. the election petitions and matters connected therewith was not to apply to the election of the Prime M.i,nister and the Speaker. it would neces the Prime sarily follow that the election of the appellant who was Minister would not be deemed to be void or ever to have become void on the ground on which such election could be declared to be void or has before such commencement been declared 'to be void under any such law. (1) [1962] Sup. 2 S.C.R. 38n. (2) [1970] 2 S.C.R. 835, *. SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 463 •• 1 ) - ! < - The same, to some extent, appears to be true of part (iv) . of If the previous law in so far as it relates to the election clause ( 4). petitions and matters connected therewith was not to apply to the election of the appellant, the High Court shall be deemed to have had no jurisdiction to decide the election petition rhallenging the election of the appellant. The effect of part (i) .of clause ( 4) is that the H!gh Court was divested of the jurisdictio.n to decide the dispute relatmg to the election of the appellant with a retrospective effect. The law under which the election of the appellant was declared to be void as a resul.t of the amendment was also made inapplicable with retrospec.;tive effect to the dispute relating to the election of the appellant. The resultant effect of the amendment thus was "tbat the order by which the election of the appell<1nt was declared to be void and the finding on which such order was based were rendered to be void and of no effect. Another aspect of part (iv) of clause ( 4) relates to the question as to whether it is open to the constituent authority to declare an order and a finding of the High Court to be void and of no effect or whether such a declaration can be made only either in separate judicial· pro ,ceedings or in proceedings before a higher court. A declaration that an order made by a court of law is void is nor mally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislatiw function have been demarcated and it .is not permissible for the legis It has accordingly been lature to encroach upon the judicial sphere. held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not bind [see Shri Prithvi Cotton Mills Ltd. & Ors. v. Broach Borough Municipality & Ors. (1), Janapada Sabha, Chhind wara etc. v. The Central Provinces Syndicate Ltd. & Anr. etc.e), Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc.( 3 ) and State of Tamil Nadu & Anr. v. M. Rayappa Gounder(4) ]. The position as it prevails in the United States, where guarantee of due process of law is in operation, is given Olli pages 318-19 of Vol. 46 of the American Jurisprudence 2d as .under : "The general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify or impair the final judgment of a court of competent jurisdiction, so as to take away private rights which have become vested by the judg ment. A statute attempting to do so has been held uncons titutional as an attempt on the part of the legislature to exer cise judicial power, and as a violation of the constitutional guarantee of due process of law. The_ legislature is not only prohibited from reopening cases previously decided by the (1) [1970] 1 S.C.R. 388 (at 392). (3) [1971] 1 S.C.R. 288. (2) [1970] 3 S.C.R. 745 (at 751). (4) A.LR. 1971 S.C. 231. A 8 c D E F G H - - - --- _ ____.m:=a;__ ... • . ... i .. -\, 464 SUPR_EME COURT REPORTS [1976] 2 S.C.R. A B c courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the cruise of an act att:ecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the .iudg ment found to be legal, or making legal that which the judg ment found to be illegal.

10.--- - - Judgment as to public right. With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgmellll: concerning a public right. Even after a public right has been established by the judg ment of the court, it may be annulled by subsequent legisla tion." Question arises whether the above limitation imposed upon the legislature about its competence to decfare a judgment of the court to be void would also operate upon the •:omtitncnt authority? D View has been canvassed before us that the answer to the above question should be in the negativ~. Although normally a declaration that the judgment of a court is void can be made either in separate proceedings or in proceedings before the higher court, there is, accord- ing to this view, no bar to _!he constituent authority making a declara tion in the constitutional law that such an order would be void especial ly when it relates to a matter of public importance like the dispute relating to the electiol11 of a person holding the office of Prime Minister. The declaration of the voidness of the High Court judgment is some thing which can ultimately be traced to part (i). _ Whether such a declaration should be made by the court or by the constituent authority is more, it is urged, a matter of the mechanics of making the declara tion and would not ultimately affect the substance of the matter that the judgment is declared void. According to article 31B, without pre- judice to the generality of the provisions contained in article 3 lA, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be· void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights con ferred by, any provisions of this Part, and notwithstanding any judg ment, decree or order of allly court or tribunal to the< contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. The ·effect of the above article, it is pointed out, is that even if a statute has been declared to be void on the ground of contravention of funda- mental rights by a court of law, the moment that statute is specified by the constituent authority in the Ninth Schedule to the Constitution, it shall be deemed to have got rid of that voidness and the order of the court declaring that statute to be void is rendered to be of no effect. It is not necessary in such an event to make even the slightest change E F G H SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 465 in the statute to rid it of its voidness. The stigma of voidness attach· ing to the statute because of contravention of fundamental rights foun~ by the court is deemed to be washed away as soon as the statute 1s specified by the constituent authority in the Ninth Schedule and the judgment of the court in this respect is rendered to be in_operative and Iru the case of Don John Douglas L1yange v. The of no effect. Queen( i) the Judicial Committee struck down as ultra vires and void the provisions of the Criminal Law (Special Provisions) Act, 1962 on the ground that they involved the usurpation and infringement by the legislature of the. judicial powers inconsistent with the written consti tution of Ceylon. Their Lordships, however, expressly referred on page 287 to the fact that the impugned legislation had not been passed by two-thirds majority in the manner required for an amendment of It rhe Constitution contained in section 29(4) of the Constitution. was observed : . "There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. Jn, so far as any Act passed without recourse to section 29 ( 4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires." The above observations, it is urged, show that the restriction upon the · legislature in encroaching upon judicial sphere may not necessarily hold good in the case of constituent authority. . The above contention has been controverted by Mr. Shanti Bhushan and he submits that the limitation on the power of the legislature that it cannot declare void a judgment of the court equally operates upon the constituent authority. It is urged that the constituent authority can only enact a law in general terms, even though it be a constitu- tional law. The constituent authority may also, if it so deems proper change the law which is the basis of a decision and make such change with retrospective effect, but it cannot, according to the learned counsel, declare void the judgment of the court. Declaration of voidness of a judgment, it is stated, is a judicial act and cannot be taken over by the constituent authority. Although legislatures or the constituent autho- rity can make laws, including those for creation of courts, they cannot, according to the submissio.n, _ exercise judicial functions by assuming the powers of a sqper court in the same way as the courts cannot act as a super legislature. It is, in my opinion, not necessary to dilate upon this aspect and express a final opinion upon the rival conten- tions, because of the view I am taking of part (iii) of clause (4). A 8 c D· E F G We may now come to part (iii) of clause ( 4). By part (iii) it is declared that the election of the appellant sha!J continue to be valid in all respects. Such a declaration would not follow from part (i) of H the clause. It would not also follow from part (ii) and part (iv) of (!) [1967] A.C. 259. 'r < - • 1<-' • ~ i 1111 ~ •. ~ 466 SUPREME COURT REPORTS [1976] 2 S.C.R. A B the clause which, as mentioned earlier, in effect represented the conse- qucnces flowing from part (i). The election to the Lok Sabha of the appellant, who was the Prime Minister, was challenged on the ground that she or her election agents had been guilty of some malpractices. The declaration that her election was to be valid in all respects neces- sarily involved the process of going in\to the grounds on which her election had been assailed and holding those grounds to be either fac- tually incorrect or to be of such a nature as in law did not warrant the declaration of her election w be void. The case_ of the appellant is that some of the grounds mentioned against her were factually in- correct and in respect of those grounds the findings of the High O:mrt is against the respondent a.nd in her favour. In respect of some 0ther grounds, except in one or two matters there is not much divergence c between the appellant and the respondent on the question of facts. The point of COJitroversy between the parties mainly is that, according to the respondent, those facts constituted corrupt practice as defined in section 123 of the RP Act, while according to the appellant· those In any case, according to facts did not constitute corrupt practice. the appellant, in view of the ameJidment made in the RP Act by amend- ing Acts 58 of 1974 and 40 of 1975, these facts did not constitute corrupt practice. The declaration made in part (iii) of clause ( 4) that the election of the appellant was to be valid in all respects was tanta- mount in the very nature of things to the repelling of the grounds advanced by the respondent to challenge the election of the appellant. Question therefore arises as to what, if any, was the law which was applied in repelling the grounds advanced by the respondent to chal- lenge the election of the appellant. So far as the existing law relating to election disputes was concerned, part (i) of clause ( 4) expressly stated that such a law would not apply to the petition filed by the respondent to challe.nge the election of the appellant. This means that the provisions of the Representation of the People Act were not to apply to the petition filed by the respondent against the appellant. This also means that the amending Acts 58 of 1974 and 40 of 1975 were not to apply to the dispute relating to election of the appellant. E D The dispute relating to the election of the appellant is also not to be governed by law which is to be enacted under clause (1) of article 329A. Such a law would apply only to future elections. The result is that so far as the dispute relating to the election of the appel- lant is concerned, a legal vacuum came into existence. It was open to the constituent authority to fill that vacuum by prescribing a law G which was to govern the dispute arising out of the petition filed by the respondent to challenge the election of the appellant. The constituent authority, however, did not do so and straightaway proceeded declare the election of the appellant to be valid. There is nothing in clause ( 4) to indicate that the constituent authority applied any law in declaring the election of the appellant to be valid and if so, what was that law. F H I am unable to accede to the argument that the constituent authority kept in view the provisions of the RP Act as amended by Acts 58 of to • . " • • .. .. • • • SMT. INDIRA GANDHI v. RA.J NARAIN (Khanna, 1.) 467 1974 and 40 of 1975 and their impact on the challenge to the efoction A of the appellant in· declaring the election· of the appellant to be valid. The difficulty in accepting this argument is that in part (i) of clausc(4) the constituent authority expressly stated that the previous Jaw, namely, the R !' Act as amended in so far as it related to election petitions and. matters connected therewith was not to apply. so far as the challenge to the election of the appellant was concerned. It is also difficult to agree that the constituent authority took into account some ether un- specified Jaw or norm in declaring the election of the appellant to be valid. As mentioned earlier, there is nothing in clause (4) to indicate that the constituent. authority took into account some other law or norm and if so, what that law or norm was. The position which thus emerges is that according to clause (4) no Jaw was to apply for ·adjudicating upon the challenge to the· election of the appdlant and the same was in terms of part (iii) to be valid in all respects. The C question with which we a~e concerned is whether the pro,·isions of clause ( 4) of article 329A by which the constituent authority effect prescribed that no election law was to govern the chaHo::ge to the election of the appellant and that the same in any case was to be valid in . aH respects is a permissible piece ·of constitutional amendment or whether it is void on the ground that it affects basic structure of the Constitution. B D __.. that people may bo This Court in the case of Kesavananda Bharati (supra) held bv majority that tlie power .of amendment of the Constitution contained · in article 368 does not permit altering the ·basic structure of the Constitntion. All the seven Judges who constituted· the majority were also agreed· that democratic set up was part of the bas;c E structure of the Constitution. Democracy postulates should · be periodical elections, so in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upo!1 the faith ·that elections ar~ fre_e and fair and not rigged and mampulated, . that they· are effecllve mstruments of ascertainin" popular will both in reality and form and are not mere rituals cai: culated to generate illusion of deference to. mass opinion: Free and fair elections require that the candidates and their agents should not .resort to unfair means or malpractices as may impinge upon the pro- cess Of free and fair elections. Even in the absence of unfair means G and malpractices, sometimes the result of ari election is . materiallv affected because of the improper rejection of ballot papers. Likewise. the result of an election may be materially affected on account t>f the improper rejection of a nomination paper. Disputes, therefore, arise . with regard to the validity of elections. For the resolving of those disputes. the different democratic countries of the world have made provisions prescribing the law and the forum for the resolving of H those disputes. To eive a few examoles. we mav re(er to the United Kim.'dom where a parliamentary: election vetition h tried bv two iudges on the rota for the trial of parliamentary election petitions in F A B C D E F G H 468 SUPREME COURT REPORTS (1976) 2 S.C.R. states accordance with the Representation of the People Act, 1949. Section 5 of article 1 of the US Constitution provides that each House (Senate and the House of Representatives) shall be the judge of the elections, returns and qualifications of its own members. Section 47 of the Australian Constitution provides that until the Parliament otherwise provides, any qucst10n respecting the qualification of a senator or of a member of the House of Representative, or respecting a vacancy in either House of Parliament, and any question of a disputed election to either House, shall be determined by the Honse in which the ques tion arises. Article 55 of the Japanese Constitution states that each House shall judge disputes related to qualifications of its members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the mem- . bers present. Article 46 of the Iceland Constitution provides that the Althing itself decides whether its members are legally elected and also whether a member i~ disqualified. Article 64 of the representatives elected Norwegian Constitution shall be furnished with certificates, the validity of which shall be sub mitted to the judgment of the Starting. Article 59 of the French Constitution provides that the Constitutional Council shall rule, in the case of disagreement, on the regularity of the election of deputies and senators. Article 41 of the German Federal Republic Constitu tion states that the scrutiny of election shall be the responsibility of the Bundestag. It shall also decide whether a deputy has lost his seat in the Bundestag. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. Details shall be regu lated by a federal law. According to article 66 of the Italian Con stitution, each Chamber decides as to the validity of the admission of its own Members and as to cases subsequently arising concerning In Turkey article 75 provides inter ineligibility .and incompatibility. alia that it shall be the function of Supreme Election Board to review and pass final judgment on all irregularities, complaints and objections regarding election matters during and after elections. The function· and powers of the Supreme Election Board shall be regulated by law. Article 53 of the Malaysian Constitution provides that if any ques- tion arises whether a member of a House of Parliament has become disqualified for membership. the decision of that House shall be taken and shall be final. Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to mal practices would be in the nature of a mere pious wish without any It is further plain that if the validi~v of t~e election legal sanction. of a candidate is challenged on some grounds, the said elect10n can be declared to be valid only. if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds. If the said forum finds that the grounds advanced to challenge the elec tion are not wel1 founded or are not sufficient election in accordance with the prescribed law or dismisses the petition invalidate • - f SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 469 • to challenge the election on some other ground, in such an event it ,can be said that the election of the returned candidate is valid. · · · Besides other things, election laws Jay· down a code of conduct in election matters and prescribe, what may be called, rules of elec toral morality. Election laws also contain a provision for r.esolving disputes and determination of controversies which must inevitably arise in election matters as they arise in other spheres of human activity. The object of such a provision is to enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in elec tion matters. It is manifest that but for such a provision, there would be no sanction for the above code of conduct and rules of electoral morality. It is also plain that nothing would bring the code of con duct into greater contempt and make a greater mockery of it than the absence of a provision to punish its violation. The position would become all the more glaring that even though a provision exists on the statute book for punishing violation of the code of conduct in election matters, a particular election is made immune and granted exemption from the operation of such a provision; appellant, The vice of clause ( 4) of article 329 is not merely that it makes the previous law contained in the RP Act as amended by Acts 58 of 1974 and 40 of 1975 inapplicable to the challenge to the election of the it also makes no other applicable for resolving that dispute. The further vice from which the said clause suffers is that it not merely divests the previous autho- rity, namely, the High Court of its jurisdiction to decide the dispute relating to the election of the appellant, it confers no jurisdiction on some other authority to decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon the grounds ad vanced by the respondent to chaJ!enge the election of the appellant, the constituent authority has declared the election of the appellant to be valid. election A B c D E To confer an absolute validity upon the election of one particular F candidate and to prescribe that the validity of that election shall not be questioned before any forum or under any law would necessarily have the effect of saying that howsoever gross may be improprieties which might have vitiated that election, howsoever flagrant may be the malpractices which might have been committed on behalf of the re turned candidate during the course of the election and howsoever foul and violative of the principles of free and fair elections may be means which might have been employed for securing success in that elec- tion, the said election would be none-the-less valid and it would not be permissible to complain of those improprieties, malpractices and unfair means before any forum or under any law with a view to assail validity of that election. Not much argument is needed to show that any provision which brings about that result is subversive of the H principle of free and fair election in a democracy. The fact that candidate concerned is the Prime Minister of the country or Speaker of the lower House of Parliament would, if anytlling, add force to the above conclusion because both these offices represent t11e acme G 9-126 SCT/76 470 SUPREME COURT REPORTS (1976] 2 S.C.R. A B c D E F G H of the democratic process in a country. That in fact the elections of the incumbents of the two offices were not vitiated by any impropriety, malpractice or unfair means is not relevant or germane to the question with which we are concerned, namely as to what is the effect of clause ( 4) of article 329A. The vice of declaration contained in part (iii) of clause ( 4) regard ing the validity of the election of the appellant is aggravated by the fact that such a declaration is made after the High Court which was then seized of jurisdiction had .found substance in some of the grounds ad vanced by the respondent and had consequently declared the election of the appellant to be void. To put a stamp of validity on the election of a candidate by saying that the challenge to such an election would not be governed by any elect\on law and that the said election in any case would be valid and immuqc from any challenge runs counter to accepted norms of free and fair elections in all democratic countries. In the case of Marbury v. Madison(') Marshall CJ. said that "the government of the United States has been emphatically termed a government of laws and not of men." In United States v. Lee(') Samuel Miller J. observed that "no man is so high that he is above the law. . . . All. . . . officers are creatures of the law and are bound to obey it." Although the above observations were made in the context of the US Constitution, they, in my opinion, hold equally good in the context of our Constitution. It has been argued on behalf of the appellant that the grounds on account of which the election of the appellant had been held to be void I need not express any by the High Court were of a technical nature. opinion about this aspect of the matter at this stage but, assuming it to be so, I find that clause ( 4) of article 329A is so worded that however serious may be the malpractices vitiating the election of the Speaker or the Prime Minister, the effect of clause (4) is that the said election I cannot accede to the submission would have to be trea,ted as valid. that in construing clause ( 4) we should take into account the facts of the appellant's case. This is contrary to all accepted norms of con struction. If a clause of a Constitution or statutory provision is widely worded, the width of its ambit cannot be circumscribed by taking into account the facts of an individual case to which it applies. As already mentioned, clause ( 4.) deals with the past election not merely of Prime Minister but also of the Speaker. So far as the election of the Speaker is concerned, we do not know as to whether the same was ever challenged and, if so, on what grounds, and whether such a dispute is still pending., Another argument advanced in support of the validity of the amend ment is that we should take it that the constituent authority constituted itself to be the forum for deciding the dispute relating to the validity of the election of the appellant, and after considering the facts of the case, declared the election of the appellant to be valid. There is, however, nothing before us as to indicate that the constituent authority went into the material which had been adduced before the High Court relating to the validity of the election of the appellant and after considering that (1) t Cr. 137, 163 (1803). (2) 106 U.S. 196, 220. J • • , - '..J 1 SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, !.) 4 71 material held the election of the appellant to be valid. Indeed, the state (Thirty ment of Objects and R,easons appended to the Constitution In any case, ninth Amendment) Bill makes no mention of this thing. the vice of clause ( 4) would still l~e in the fact that the election of the appellant was declared to be valid on the basis that it was not to be governed by any law for settlement of election disputes. Alth~ugh t~e provisions of a constitutional amendment should be construed m a fair and liberal spirit, such liberal spirit should not be carried by the court to the extent of discovering the application of a dormant and latent law in the declaration of the validity of an election even though there is not even a remote indication of such a law in the impugned provision. Rule of law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. taken without any prindple or without any rule, it is not prcdicta~le and such decision is the antithesis of a decision taken in accordance with the rule of law. If a decision · The matter can also be looked at from another angle. The effect of impugned clause ( 4) is to take away both the right and the remedy to challenge the election of the appellant. Such extinguishment of right and remedy to challenge the validity of the electfon, in my opinion, is incompatiablc with the process of free and fair elections. Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void. To extinguish the right and the remedy to challenge the validity of an election would necessarily be tantamount to laying down that even if the election of a candidate is vitiated by the fact that it was secured by flagrant violation· of the principles· of free and fair election, the same would still enjoy inmrnnity from challenge and would be none-the-less valid. Clause ( 4) of article 329A can, there fore, be held to strike at the basis of free ·and fair elections. I agree that it is not necessary in a democratic set up that disputes relating to the validity of the elections must be settled by courts of law. There are many countries like France, Japan and the United States of America where consistently with the democratic set up the determination of such controversies is by legislatures or by authorities other than the courts. The question with which we are concerned, however, is whether it is permissible in a democratic set up that a dispute with regard to the validity of a particular election shall not be raised before any forum and shall.not be governed by law and whether such an election can be dec lared, despite the existence of a dispute relating to its validity, to be valid by making the existing Jaw relating to election disputes not appli cable to it and also by not applying any other election law to such a dispute. The answer to such a question, for the reasons given earlier by me, should be in the negative. Reference to the election of the US President made bv Mr. Sen is also not helpful to him. It is clear from observations on pages 47-50 of the American Commonwealth by Bryce 1912 Ed. and sections 5, 6 and A c D E F G H A B c D E F G H 4 72 SUPREME COURT REPORTS (1976] 2 S.r.R. 15 of the United States Code (1970 Ed.) that there is ample provision for the determination of such disp~es after the poll. The fact that such determination of the dispute is before the declaration of the result would not detract from the proposition that it is essential for free and fair elections that there should be a forum and law for the settlement of such disputes relating to the validity of the election. Argument has· also been advanced that the offices of the Prime M_inister and Speaker arc of great importance and as such they con stitute a class by themselves. This argument, in my opinion, would have relevance if instead of the law governing disputes refating to the election of other persons, another law had been prescribed govern the dispute relating to the election of a person who holds che office of the Prime Minister or Speaker. As it is, what we find is that so far as the disputes relating to the election of the appellant is concerned, neither the previous law governing the election of per sons holding the office of the Prime Minister is to apply to it nor the future law to be framed under clause ( 1) of article 329A governing the election of persons _holding the office of Prime Minister is to apply to this duspute. Likewise, the previous forum for adjudicating upon the election dispute which went into the matter, has· been divested of its jurisdiction with retrospective effect and, at the same time, no jurisdiction has been vested in any other forum to go into the matters. The present is not a case of change of forum. It is, on the contrary, one of the abolition of forum. As such, the question as to whether the office of Prime Minister constitutes a class by itself loses much of its significance in the context of the controversy with which we are concerned. It has been argued in support of the constitutional validity of clause ( 4) that as a result of this· amendment, the validity of one election has been preserved. Since the basic structure of the Constitution, according to the submission, continues to be the same, clause ( 4) cannot be said to be an impermissible piece of constitutional amend~ ment. · The argument has a seeming plausibility about it, but a deeper reflection would show that it is vitiated by ·a basic fallacy. Law normally connotes a rule or norm which is of general application. It may apply to all the .persons or class of .persons or even ind!vi~uals of a particular descnption. Law prescnbes the abstract pnnc1ples by the application of which individual cases are decided. Law, how is not what Blackstone called "a sentence". According to Ros~oe Pound, law, as distinguished from laws, is the system of autho ritative materials for grounding or guiding judicial and administrative action recognized or established in a politically organized society (see page 106, Jurisprudence, Vol. III). Law is not the same as judg ment. Law lays down the norm in abstract terms with a coercive power and sanction against those guilty of violating the norm, · while judgment represents the decision arrived at l1y the application of law to the concrete facts of a case. Constitution!ll law relates to the various organs of a state· it deals with the structure of the government, the extent of distributlon of its powers and the modes and principles of its operation. The Constitution of India is so detailed that some of the matters which in a brief constitution like t"'1at of the United States of ... ( .. "i ' I ·~ ..... - ,• SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 473 America are dealt with by statutes from the subject matter of various articles of our Constitution. There is, however, in a constitutional law, as there is in the very idea of law, some e1ement of generality It also carries with it a concept of its applt: or general application. .:ability in future to situations which may arise in that context. there is amendme.o,t of some provision of the Constitution and the · amendment deals with matters which constitute constitutional law in Lhe normally accepted sense, the court while deciding the question of the validity of the amendment would have to find out, in view of Lhe majority opinion in Keshavananda Bharati's case (supra), as to whe ther the amendment affects the basic structure of the Constitution. The constitutional amendment contained in clause ( 4) with which we are concerned in the present case is, however, of an altogether diffe rent nature. Its avowed object is to confer validity on the election of the appellant to the Lok Sabha in 1971 after that election had been declared to be void by the High Court and an appeal against the judg Inspite of our ment of the High Court was pending in this Court. query, we were not referred to any precedent of a similar amendment of any Constitution of the world. The uniqueness of the impugned constitutional amendment would not, however, affect its validity. If the constituent authority in its wisdom has chosen the vali dity of a disputed election as the subject-matter of a constitutional amendment, this Court cannot go behind that wisdom. All that this Court is concerned with is the validity of the amendment. I ueed not go into the question as to whether such a matter, in view of normal concept of constitutional law, can strictly be the subject of this case a constitutional amendment. assume that such a matter can validly be the subject-matter of a con stitutional amendment. The question to be decided is that if the im~ pugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitutfon, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of remains unaffected. The answer to the above question, in my opinion, should be in the negative. Wliat has to be seen in such a matter is whether the amendment con travenes or runs counter to an imperative rule or postulate which is If so, it an integral part of the basic structure of the Constitution. would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an. amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one ·case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever such an amendment, it· can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited· cannot become permissible because of its being confined to one matter. the authority concerned deems I shall for the purpose of the Constitution it proper to make · Lastly, question arises whether we should strike down clau~e ( 4) I am in its entirety or in part. So far as this aspect is concerned, A B c D E F G H A B C D E F G II 474 SUPREME COURT REPORTS [ 1976) 2 S.C.R. of the view t~at the ~ifferent parts of clause ( 4) arc so integrally con nected and lmked with each other that it is not possible to sever them and uphold the validity of part of it after strikin<T down the rest of it. It would indeed be unfair to the appellant if we" were to uphold t~~ first part of clause ( 4) and strike down other parts or even part (m). As would be apparent from what follows hereaft·~r the election of the appellant is being upheld by applying the provisio~s of the RP Act as amended by Act 40 of 1975. Such a course would not be permissible if we were to uphold the validity of th~ first part of clause ( 4) and strike down the other parts. We would also in that event be creating a vacuum which is the very vice for which we are striking down clause ( 4). I am, therefore, of the view that clause ( 4) should be struck down in its entirety. In view of my finding that clause ( 4) strikes at the basic structure of· the Constitution, it is not necessary to go into the question as to whether, assuming that the constituent authority took it upon itself to decide the dispute relating to the validity of the election of the appel lant, it was necessary for the constituent authority to hear the parties concerned before it declared the election of the appellant to be valid and thus in effect repelled the challenge of the respondent to the vali- dity of the appellant's election. As a result of the above, I strike down clause ( 4) of article 329A on the ground that it violates the principle of free and fair elections which is an essential postulat·e of democracy and which in its turn is a part of the b:;isie 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 th·e aforesaid election. We may now deal with appeal No. 887 of 1975 filed by the appel- lant. So far as this appeal is concerned, it has been argued by Mr. Sen on behalf of the appellant that the grounds on which the election of the appellant has been declared by the High Court to l>e void no longer hold good in view of the amendment in the RP Act by Act 40 of 1975. As again that, Mr. Shanti Bhushan on behalf of the respondent has assailed the validity of Act 40 of 1975. In the alter native, Mr. Shanti Bhushan contends that even if the validity of Act 40 of 1975 were to be upheld, the grounds on which the election of the appellant has be~n declared to be void would still hold good. The question as to whether Act 40 of 1~75 is not vitiated by any constitutional infirmity would be dealt with by me subsequently. For the time being I would proceed upon the bas.is that . t~e statuto.ry amendment in the RP Act by Act 40 of 1975 1s constitutionally valtd. Section 10 of Act 40 of 1975, which has been reproduced earlier, makes it clear, inter alia, that the provisions of sections 6, 7 and 8 ... ' r' t \. - - \ I ~- SMT. JNDIRA GANDHI v. RAJ NARAIN (Khanna, 1.) 475 .• "' • , "' --- ... _,. Qf that Act shall have retrospective operation, so as to apply to or in relation to any election held before the commencement of this Act, to either House of Parliament in respect of which appeal from any order of any High Court made in any election petition under the RP Act is pending before the Supreme Court immediately before such commence- It is, therefore, obvious that the provisions of sections 6,, 7 and ment. 8 of Act 40 of 197 5 would be attracted to this case. One of the questions. which actually arose for determination before the High Court was as to what was the date on which the appellant held herself out as a candidate. According to the written statement filed on behalf of the appellant, she held herself out as a candidate from the Rae Bareli constituency on February 1, 1971 when she filed her nomination paper. As against that, the case of the respondent was that the appellant held herself out as a candidate from that constituency on December 27, 1970 when the Lok Sabha was dissolved. The finding of the High Court i's that the appellant held herself out as a candidate from the Rae. Bareli constituency on December 29, 1970 when she addressed a Press conference. The question as to when the appellant held herself out as a candidate from the Rae Bareli constituency has now become pure- ly academic in view of the change in the definition of the word "candi- date" as given in clause (b) of section 79 of the RP Act by Act 40 of 197 5. According to the original definition, "unless the context other- wise requires, 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when,, with the election in prospect, he began to hold himself out as a prospective candidate''. The new definition states that "unless the context otherwise requires, 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election". The question as to when a person holds himself out as candidate, therefore, .loses its importance in the context of the· new definiti_on. One of the grounds which weighed with the High Court in declar ing the election of the appellant to be void was that the appellant com mitted corrupt practice under section 123(7) of the RP Act inasmuch as she obtained and procured the assistance for the furtherance of her election prospects of Yashpal Kapur during the period from January 7 to 24, 1971 when Yashpal Kapur was still a gazetted officer in the service of the Government of India. According to clause (7) of section 123 of the RP Act, the follow ing Act shall constitute corrupt practice under that clause : "The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the seNice of the Government and be longing to any of the following classes, namely;- (a) gazetted officers; (b) stipendiary judges and magistrates; A B C D E F G H A B c D E F G H 476 SUPREME COURT REPORTS (1976] 2 S.C,R. (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers. known as lambardars,, malguzars, deshmukhs or by any other name,. whose duty is to colkct land revenue and who are remunerated by a share of, or commis- sion on, the mnount of land revf:nuc collected by them but who do not discharge any police func.tion; and . ~ • ?' .• ~ • "- .-. (g) such other class of persons iin the service of the Government as may be prescribed. Explanatio11.-(1) In this section the expression 'agent' includes an election agent, or polling a§ent and any person. who is held to have acted as an agent in connection with the consent of the candidate. (2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a can didate's election if he acts as an election agent." Perusal of the above clause shows that what constitutes corrupt prac tice under the above clause is the obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or by any person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of the candidate's election from any person in the service of the Government and belonging to any of the classes specified there in. It is, in my opinion, essential that at the time the impugned act,, namely, the obtaining or procuring or abetting or attempting to obtain or procure the assistance of a Government ~:ervant is done, the person doing the act must be a candidate or his agent or any other person with the consent of a candidate or his election agent. Candidate in this clause would mean a person who has bi~en or who claims to hav·'.: been duly nominated as a candidate at the election. I am unable to accede to the submission of Mr. Shanti Bhushan that the word "camli date" has been us-ed merely to identify the person who is duly nomi nated as a candidate at an election and that the word ''candidate". as mentioned in clause (7), would also include a person who after the commission of the corrupt practice specified in that clause, is sub sequently nominated as a candidate. The amended definition repro duced above shows that unless context otherwise requires, candidate means a person who has been or claims to have been duly nominated as a candidate at an election. To accede to the submission of Mr. Shanti Bhushan would be tantamount to reading in the definition of the word "candidate" in addition to the words "who has been or claims to have been duly nominated" also the words "who is subsequently nominated as a candidate". There is nothing to indicate word "candidate! in clause (7) of sectfon 123 has been used merely SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 477 . to identify the person who has been or would be subsequen.tly J?-Omina~ed A 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 defini- tion of the word gets substituted. Reading the word "candidate" in section 123(7) of the RP Act in the sense in which it has been defined as a result of the amendment made by Act 40 of 1975. I find that the_ only reasonable inference is that the person referred to as ~ can didate in that clause should be a person who has been or drums to have been duly nominated as a candidate at an election and not one who as yet to be nominated. B c IJl E Mr. Shanti Bhushan has invited our attention to clause (b) of section 100(1) of the RP Act wherein it is stated that subject to the provisions of sub-section (2) of the section if the High Court is of the opinio11 that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of th~ returned candidate to be void. ''Returned candidate" has been defined in clause (f) of section 79 to mean, unless the context otherwise requires; a candidate whose name has been pub lished under ·section 67 as duly elected. It is urged that as the corrupt practice referred to in clause ( b) of , section 100 ( 1) of the RP Act would in the very nature of things have to be committed by the returned candidate before his name was published under section 67 as duly elected, the words "returned candidate" in clause (b) of section lGO(l )' must be taken to have been used with a view to identify the person who subsequently beclplle a returned candidate. It is urged that if while dealing with corrupt practice committed by a candidate before he became a returned candidate in the context of section lOO(U(b), it is permissible to hold that the words "returned candidate" are intend- ed to identify the person who subsequently became a returned candidate, the same criterion should apply when construing the word "candidate" in section 123 of the RP Act. This contention, ·in my opinion, is de- void of force. The definition of the words "returned candidate" and "candidate" given in section 79 of the RP Act are preceded by the words "unless the context otherwfa.~ requires'. The connotation of the above words is that normally it is the definition given in the section which should be applied and given effect to. This normal .rule may,. however, be departed from if there be some thing in the context to G show that the definition should not be applied. So far as clause (b) of section 100 (1) is concerned, the context plainly requires t.hat the corrupt practice referred to in that clause should have been committed by the <:andidate before he became a returned candidate, or by his agent or by any other person with his consent or that of his election agent. The compulsion arising from the context which is there in clause (b) of section 100 ( 1) of the RP Act is singularily absent in H section 123(7) of the RP Act. There is nothing in the context of the latter provision which requires that we should not give full effect to the new definition of the word "candidate". F ' A .B E F G H 478 SUPREME COURT REPORTS (1976] 2 S.C.R. . Reference has also been made by Mr. Shanti Bhushan to observa tions on pages 222-3 of Vol. 14 of Halsbury's Laws of Enofand Third Ed.ition, accor9ing to which a candidate at a general election 1~my be gmlty of treatmg even though the training took place before the dis solution of the Parliament and consquently before he came within the statutory definition of a candidate. These observations have been made in th~ .context of the statutory provisions in the United Kingdom. Those prov1s10ns were couched in a language substantially different from that in which the provisions of the RP Act in India an: couched and as such in my opiriion, not much assistance can be derived from those observa~ tions. . • As the appellant filed her nomination paper on February 1, 1971, in view of the amended definition of the word "candidate", it would have to be taken that the appellant became a candidate only on Febru ary 1, 1971. The result is that even if the finding of the High Court that the appellant obtained _and procured the assistance of Yashpal Kapur during the period from January 7 to 24, 1971 were assumed to be correct, the appellant shall not be deemed to have committed corrupt practice under section 123 (7) of the RP Act. As regards the assist ance of Yashpal Kapur which the appellant is alleged to have obtained and procured after January 14, 1971, the controversy stands resolved also by another amcndm~nt. According to the case of the appellant. Yashpal Kapur tendered his resignation by letter dated January 13, 1971 with effect from January 14, 1971. The High Court found that Yashpal Kapur continued to be in the service of the Government of India till January 25, 1971 which was the date of the notification regarding the acceptance of Yashpal Kapur's resignation. According to the said notification,, the President was pleased "to accept the resignation of Shri Y. P. R. Kapoor, Officer on Special Duty in the Prime Minister's Secretariat, with effect from the forenoon of the 14th January, 1971". The explanation which has been added to section 123 of the RP Act makes it clear, inter alia, that for the purpose of clause (7), notwith standing anything contained in any other law, the publication in the official gazette of the resignation and termination of service of a person in the service of the Central Government shall be conclusive proof of his resignation and termination of service and where the date of taking effect of his resignation or termination of service is stated in such pub lication, also of the fact that such person ceased to be in such service with effect from the said date. Yashpal Kapur in view of the newly added explanation, shall be taken to have ceased to be in Government service with effect from January 14, 1971. Any assi>tance of Yashpal Kapur which the appellant was alleged to have obtained or procured on or after January 14, 1971 would not, therefore, make her guilty of corrupt practice under section 123(7) of the RP Act. Another irround on which the Hi!!h Court declared the election of the appellant "'to be void was. that she committed corr_upt pn1ctice. under section 123 ( 7) of the RP Act inasmuch as she ob tamed the assistance of the officers of the UP Government, particu1arly the District Magis trate, Superintendent of Police, the Executive Engineer PWD and the Engineer Hyde! Department for construction of rostrums and arrange ment nf supply of power for loudspeakers in the meetings addressed .. '( . SMT. lNDIRA GANDHI v. RAJ NARAlN (Khanna, J.) 479 by her on February 1, 1971 and February 25, 1971 in furtherance of her election prospects. It is not disputed that what was d_one by t~e .above mentioned officers was in pursuance of official directions and m the discharge or purported discharge of the offi,cial duties. This is in deed clear from letter dated November 19, 1969 from the Government of India,, Ministry of Home Affi!irs to all State Governm~nts wherein there is reference to rule ( 6) of tfie Rules and Ins truct10ns for the Protection of the Prime Minister and it is stated : • • ·1 • "As the sccuri~y of th·e Prime Minister is the concern -0f the State all arrangements for putting up the rostrum, the barricades etc. at the meeting place, incl~ding that of an .election meeting will have to be made by the State Govern- ment concerned ................... . In the case of election meetings, all expenditure on police, setting up of barricades and taking lighting arrangements will be borne by the State Government while expenditure on the public address system and any decorative arrangements will be the responsibility of the political party concerned. (The expenditure on all these items, may in the first instance be borne by the State Government and then recovered from the political parties concerned). Jn regard to the· rostrum only 25% of the cost of the rostrum or Rs. 2500.00 which ever is less, shall be contributed by the party as the rostrum has to be of certain specifications because of security consi derations." Assuming that the finding of fact recorded by the High Court in this respect is correct, the appellant can still be not guilty. of the commis- sion of corrupt practice under section 12.3 (7) of the RP Act in view of the new proviso which has been inserted at (he ·end of clause (7) of section 123 and which reads as under : "Provided that where any person, in the service of the Government and· belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty,, makes any arrangements or provides any facilities or does any other act or thing, for, to or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his agent or any other person acting with the consent of the candidate or his election agent, ( whcth.:r by reason of the office held by the candidate or for any other reason). such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election." The above proviso has also a direct bearing on the allegation of the respondent that the appellant committed corrupt practice under section 123(7) 0£ the RP Act inasmuch as she or her election agent procured the assistance of members of armed forces of the Union for furtherance of her election prospects because of the fact that the members of the armed forces arranged planes and helicopters of the Air Force for her flights to enable her to address meetings in her constituency. A B c D E F G H A B c D E F G H 480 SUPREME COURT REPORTS [1976] 2 S.C.R. It has been argued by Mr. Shanti Bhushan that the words "in the discharge of purported discharge of his official duty" in the above mentioned proviso have reference orily to statutory duty and not to other duty performance Of which takes plac" in pursuance of admini strative instructions. I find it difficult to accede to the above submis- sion as there is nothing in the above proviso to ·confine the words. "official duty" to duty imposed by statute. Official duty would include not merely duties imposed by statutes but also those which have to• be carried out in pursuance of administrative instructions. t' Mr. Shanti Bhushan during the course of arguments made it plain ~ that apart from his .submission with regard to the validity of Act 40 of 1975, his objection relaing to the applicability of Act 40 of 1975 was confined to two matters, namely, the connotation of the word "candid ale" and the meaning to be attached to "official duty". Both these objections have found by me to be not I - would, therefore, hold that subject to the question n to whether the provi sions of Act 40 of 1975 are valid, the grounds on which the High Court has declared the election of the appellant to be void no longer hol.d good for declaring the said election to be void. tenable. .__ We may also before dealing with the validity of Act 40 of 1975 refer to one other change brought about by that Act which has a bearing upon the present case. the respondent that the appellant and her election agent made extensive appeals to the religious symbol of cow and calf and thereby committed corrupt practice under 1'Cction 123 (3) of the RP Act. Corrupt practice has. been defined in that provision as under : It was the case of "(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any per son on the grourn;I of his religion, race, caste, community or language or the use of, or appeal to rdigious symbols or th.; use of, or appeal to, national symbols, such as mitional fla;; or the national emblem, for the furtherance of the pro>p~cts of the election of that candidate or for pre judicially affecting the election of any candidate." It is the common case of the parties that the symbol of cow and calf was allotted to the Congress party by the Election Commission. The learned counsel for the respondent stated during the course of arguments in the High Court that he confined his case only use of the symbol of cow and calf. The learned counsel gave uo that part of the case of the respondent wherein it had been alleged thai appeals were made to the religious symbol of cow and calf by the appellant. The following proviso has now: been clause (3) of section 123 by section 8 of Act 40 of 1975 : inserted "Provided that ho symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national ~ymbol for the purposes of this clause." It is; therefore, apparent in view of the above proviso that the sym bol of cow and calf which was allotted to the appellant shall not be sMT. INDIRA GANDHi v. R.AJ NARA.iN (Khanna, J.) 481 deellled to be a religious symbol or a national symbol for tlie purpose .of section 123(3) or the l<.P Act. The appellant as such cannot l:>e deemed to have committed a corrupt practice under secnon 123(3) .of the RP Act by use of the symbol of cow and calf. • Jn assailing the validity of Act 40 of 1975 Mr. Shanti Blmshan Ji.as referred to section 10 of that Act, according to which the amend .meats made by sections 6, 7 and 8 of the Act in the RP Act shall • have retrospective operation, so as to apply to any election held 111 .before the commencement of the Act in respect of which an election ,petition is pending or in respect of which appeal from any order of -" the High Court is pci1ding immediately before the commencement of .Act 40 of 1975. It is urged that a change in the election law with retrospective effect strikes at the principle of free and fair elections. Retrospective operation of the amending Act, according learned counsel, has the effect of condoning what was at the time it ·was committed a corrupt practice. ·->- \ no difference. I have given the matter my earnest consideration, a.nd am of t?e opinion that there is no substance in ~~e above. conten~1'?".-· A lcg1s Jature has, except in a matter for wh1cn there. 1s prolnb;tton like the one contained in article 20 ( 1) of llhe Constitut10n, the power to make Jaws which are prospective in operation as well as laws which have retrospective operation. There is no limitation on the power of the legislature in this respect. Essentially it is a matter relating to the -capacity and competence of the legislature. Although most of the Jaws made by the legislature have a prospective operation, occasions .arise quite often when necessity is felt of giving retrospective effect to a law. This holds good both in respect of a principal Act as well .as in respect of an amending Act. If the provisions of an Act passed .by the legislature are not violative of the provisions of the Constitu .tion, those provisions shall have to be given effect to and the fact that <the operation of the Act is prospective or retrospective would make It is also permissible to amend a law which is basis of t~e. decision of a court with retrospective effect and rely upon the ·prov1s1ons. of the amended law in appeal against the above decision ·Of the court. The court of appeal in wllich an event gives full effect to the amended law even though such amendment has been made after the decision of the original court. The one field in which it is ~ot permissible to J1!ake a law with retrospective effect is contained m cl~use (1) of article 20, according to which no person shall be conv;cted of any offence except for violation of a law in force at the !ime of, the commission of the act charged as an offence, nor be sub- 1ected to a pen~lly greater than that which might have been inflicted ')f ·under the law m for~e at ~he time of the commission of the offence. · A:P~rt from the ~eld m which there is a constitutfonal prohibition for g1vmg. retrospective. effect to a law, power of making amendment in la~ with retrospective. effect has ~ow become a part of normal legis lative process. Question then arises as to whether in spite of ~eneral con~petence ~f the legislature to make a law with retorspec t1;ie effect, 1s t?c Jeg1s1a11!re ren~ered incompetent to make a -with retrospective effect m election matters ? The answer to • , ..1. A B c D E F G H A H c D E F G H • 482 SUPREME COURT REPORTS [1976] 2 S.C.R. question, in my opinion, should plainly be in the negative. Election laws arc a part of the normal legislative process and what is per mitted in the matter of ordinary legislation would also be permissi- ble in the matter of legislation relating to elections unless there be some provision in the Constitution which forbids such a course. We have not been refrrred to any provision in the Constitution which has the effect of creating a bar in the way of the legislature making a law If a party seeks to relating to elections with retrospective operation. carve out an exception to the normal rule, it can do so only on the basis of some cogent ground. No such ground has been brought to our notice. The matter indeed is not res integra because there have been two cases wherein this Court has upheld the validity of the law making amendments in election laws with retrospective cliect. ,. .,,, • '9' Th.: first rnch case was State of Orissa v. Bhupendra Kumar Bose (supra). It arose out of elections to the Cuttack Municipality held in December 1957 to March 1958 as a result of which 27 appel lants were declared elected as Councillors. The respondent, who was defeated at the elections, filed a writ petition before the High Court challenging the elections. The High Court held electoral rolls had not been prepared in accordance with the provi sions of the Orissa Municipalities Act, 1950, as the age qualification had ·been published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as elections. prescribed. The High Court consequently set aside the The State took the view that the judgment affected not merely Cuttack Municipality but other municipalities also. Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared in respect of rnrious municipalities. The respondent thereupon filed a writ. petition before the High Court contending that the Ordinance was uncomtitutional. The High Court struck down the Ordinance. One of the grourn.ls which weighed with the High Court in striking down the Ordinance was that it contravened article 14 of the Cons titution. . The State and the Councillors came up in appeal to this It was held by this Court that the Ordinance was valid and Court. that it successfully cured the invalidity of the electoral rolls and of elections to the Cuttack Municipality. The Ordinance was further held not to offend article 14 of the Constitution as its object was not only to save the elections to the Cuttack Municipality but also other municipalities whose validity might be challenged on similar grounds. The Ordinance, in the opinion of the Court, did not sinirle out the respondent for discriminatory treatment. Gaiendragadkar ~ J. (as he then was) speaking for the Constitution Bench of this Court obsen'ed: "The Cuttack Municipal Elections had been set aside by the High ,Court and if the Governor thought that in public interest, having regard to the factors enumerated in the preamble to the Ordinance, it was necessarv to validate thL~ said elections, it would not necessarily follow that the Ordinance suffers from the vice of contravening Art. 14." .... ,. ,J SMT. lNDlRA GANDHl v. RAJ NARAIN (Khanna, J.) 483 It was fu rtiler observed : "Therdore, if the infirmity in the electoral rolls on·· which the ckcision of the High Court in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State c;>f Orissa, then it may have been open to the Governor to issue an Ordinance oniy in respect of the Cuttack Municipal Elec tions, and if, on account of special circumstances or reasons applicable to the Cuttack Municipal Elections, a taw was ·passed in respect of the said elections alone, it could not have been challenged as unconstitutional under Art. 14. Similarly, if Mr. Bose was the only litigant. affectc~ by the decision and as such formed a class by himself, it would have been open to the Legislature to make a law only in respect of his case. But as we have already pointed uut, the Ordinance does not purport to limit its operation only to the Cuttack Municipality; it purports to validate Cuttack Municipal Elections and the electoral rolls in res pect of other Municipalities as well. Therefore, we satisfied that the High Court was in error in coming to the conclusion that section 4 contravenes Art. 14 of the Cons titution." In Kanta Kathuria v. Manak Chand Surana (supra) the dispute relat.ed to the election .of the appellant to the Rajasthan Legislative Assembly. The appellant in that case had been appointed as a Special Government Pleader to represent the State of Ra jasthan in· an arbitration case. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election of the appellant was challenged inter alia on the ground that the appellant ~ held an office of profit within the meaning of article 191 (1) of the Constitution. The High Court set aside the election of the appellant. The appellant then came up in appeal to this Court. During pendency of the appeal, Rajasthan Act 5 of 1969 was passed declar ing among others that the holder of the office of 'Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly. The :\ct waj made retrospective and removed the appellant's disqualification retrospectively. On the ques.tion as to whether the appellant was holding an office of profit and hence was disqualified, Sikri, Ray and Reddy JJ. held that appellant was not holding an office of profit. Hidayatullah CJ. and Mitter J., however, held that the High Court was right in holding that the appellant held an office of profit. All the five Judges cons tituting the Constitution Bench were, however, unanimous on point that the Act of 1969 had removed the disqualification of appellant retrospectively. Hidayatullah CJ. speaking for himself and Mitter, J. observed : "It is also well-recognised that Parliament and Legisla tures of the States can make their laws operate rctrosncc•i vely. Any law that can be made prospectively may he .r A B c D E F G H 484 SUPREME COURT REPORTS ll976] 2 5.C.R. A made wili1 retrospective operation except that certain kinds of laws cannot operate retrospectively. This is not one of This position being firmly grounded we have to look for limitations, if any, in the Constitution. Article 191 (which has been quoted earlier) itself recognises the power of the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosrn as a rntmbcr. The Article says that a person shall be dis qualifkd ii he holds an otfice of profit under the Govern ment of lndia or the Government of any State unless that citfice is di;;clared by the Legislature not to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. There is nothing word<, o[ the a1 ticle to indicate that this declaration cannot be made with retrospective effect." It was further observed : • "Regard being had to the legislative practice country and in the absence of a clear prohibition either express or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation." Sikri, J. (as he then was) speaking for himself, Ray J. (as he then was) and Reddy J. dealt with the matter in the following words : "Mr. Chagla, learned counsel for the respondent, con tends that t11e Rajasthan State Legislature was not compe tent 'to declare retrospectively' under Art. 191 (l)(a) of the Constitution. It seems to us that there is no force in It has been held in numerous cases by this contention. this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legi&lature of the State, and we are unable to imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place any implied restric tion. We notice that the British Parliament in one case validated the election : (Erskine May's Treatise on Law, Privileges Proceedings & Usage of Parliamcnt Seventeenth (1964) Edition)- 'Aftcr the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springhbourn Division of Glassgow were dis qualified at the time of their election because they were member" of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act. 1943, wbich entitled them to a small fee in respect of attendance at a Tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and • . . ·~ ' c D ·F :H SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 485 in an:onlance with their recomm~nd~tion th.e Coat~ridge and Springbourn Elections (Vahdat.10n) Bill was mtro . duced to validate the irregular elect10ns [H. C. Deb . . ; .. (1945-46) 414, c. 564-6]. See also H.C. 3 ,(1945-46); ·ibid. 71 (1945-46) and ibid. 92 (1945-46). ~e 'have also noticed two earlier instance~ retr~spec;tive legislation, e.g., the House of Commons (P1squah~cat10n) Act, 1813 (Halsbury Statutes of England p. 4~,) .ai.1d Sec. 2 of the Re-election of Ministers Act, 1919 ( 1b1d. p. 515)' Great stress was laid on the word in Art. 191 (1) (a), but we are unable to impl_Y any limitation on the powers of the Legislature from this . word. ,,Declara tion can be made effective as from an earlier date. ·'declare' The above t\Vo authorities .of this Court clearly lend support. for the view tl1at it is permissible to amend a law relating to elect1011s with rctrospcctivc operation. Mr. Shanti Bhushan has critici~cd the observations of Sikri J. reproduced above on the score that m United Kingdom amendments in election law have not been made to affect pending proceedings in courts. This is essentially a matter for the legislature to decide, this does not affect the competence of the legislature to make a change in election law with retrospective effect. In any cam, the proposition of law laid down in the case of Kanta Katlwria is binding upon us and I do not find any reason to. detract either from the soundness of the view expressed therein or its binding effect. following The Privy Cour;cil also upheld in the case of Ariyesekera v. to an Jayalilake(1) an Order in Council giving retrospective effect election law in Ceylon. This question arose in the cumstances. An Order in Council of 1923 made provision as to the Legislative Council in Ceylon, but reserved to His Majesty power to revoke. alter or amend the Order. The appellant, as common infor mer, brought an action to recover penalties under the Order from the respondent, who he alleged had sat and voted after his seat had be come vacant under its provisions by reason of his having a pecuniary interest in a contract with the Government. action had been brought, but before its trial, an amendin" Order in Council was made providing that the actiort should be d~mis,ed: it alw amended the Order of 1923 so as to except the office held by the It was held that the Order of ·1928 respondent from its operation. was valid. having regard to the power reserved by the Order of 1923. and wa~ an effective defence to the action, although it was retrospec tive in its operation. Lord Darling in the above context observed : In 1928, after "It was argued that the Order in Council of November 1. 192~. w~s ultra vires as. affecting to take away right action already m existence, thus havmg a retrospective (1) [1932] .A.C. 260, 10-126 Sur. CT/76 c E F G H • - -, - •. I . r --, . ""' A 8 c D E G H 486 SUPREME COURT REPORTS . (1976] 2 S.C.R. The effect, however, of the Order of 1928, as expressed on indemnity and the iace of it, was no more than an act of relief in respect of penalties incurred. It may be true that 'not Jove himself upon the past hath power'; but legislators have certain the right to prevent, alter or reverse the con seq uenccs of their own decrees. There is no necessity tQ give instances to prove that they have frequently done w; even going so far as to restore the heritable quality blood which had been deprived of its virtue by Acts of attainder." I am not impressed by the argument that retrospective operation of the relevant provisions of Act 40 of 197 5 affects free and elections. The said provisions of Act 40 of 1975 are general terms and would apply to all election disputes which may be pend ing either in the High Court or in appeal before the Supreme Court or which may arise in future. It is no doubt true that the retrospec tiv~ operation of an amending Act has the effect of placing one of the parties to the dispute in a more advantageous position compared to others but that is inevitable in most of ·the amendments with retrospective operation. This Court in the case of Harbhajan Singh v. Mohan Singh & Ors.(1) dealt with the provisions of section 3 of Punjab Pre-emption (Repeal) Act, 1973, according to which on and from the date of commencement of that A::t, no court shall pass a . decree in any suit for pre-emption. This Court held that the above provision was also applicable to appeals which were pending at the commencement of that Act as an appeal was in the nature of a re hearing, and as such even if the suit had been decreed by the court, the suit was liable to be dismissed because of the coming into force of the Punjab Pre-emption (Repeal) Act during the pendency It is plain that only those vendees obtained the bene of the appeal. fit of the ahove Act who had filed appeals against the decree awarded against them in pre-emption suit. Vendees in other cases who did not file appeal against the decrees awarded against them in view of the then existig law had to Jose the purchased property and thus be at a disadvantage. That fact, however, did not prevent this Court from giving effect to the amendment. Whenever a legislature makes a Jaw or amends a law, it has to indicate the time would come into effect. This is essentially a matter for the legisla ture and the court cannot substitute its own opinion for that of the legislature. The fact that the change in law is made applicahle to pending cases and the classification treats the decided cases as belong ing to one category and pending cases as belonging to another cate gory is not offensive to article 14 [see. Anant Mills v. State of the pro Gujarat(2)]. Nor can the court interfere on the score of priety of givin)! retrospective effect to an amendment mad~ in Indeed, the question of oropriety is a matter which election law. i~ cntirelv for t11e legislature to think of and decide. It cannot affect the validity of the law. This Court in the case of Kanta Kathuria (supra) expressly rejected the contention that amendment in election from which (I) [1974] 2 S.C.C. 364. (2) (1975] 2 ~.c.c. 11s. - • • SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 487 law was void because it gave advantage to a party. Hidayatullah C.J. observed in this context : A "It is true that it gave an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the dis ability was not removed. That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws." Likewise, Sikri J. expressly rejected the contention that retrospective amendment in election law was bad because it was not a healthy practice and because such a course was liable to be abused following words : 'The apprehension that it may not be a healthy practice and this power might be abused in a particular case are the State again no grounds for limiting the powers of Legislature." B c ..; .. • • ~ - • The above observations also provide an answer to the contention o[ Mr. Shanti l3lmshan that the provisions of the amendment made D I may state that in case the pro by Act 40 of 1975 can be abused. visions of the amended law are abused, and some of the instances of abuse were visualized by Mr. Shanti Birnshan during the course of arguments, this Court would not 'be helpless in the matter. The proper course in such an event would be to strike down ~he action taken under the amended law and not the law itself. > )- - •. l Reference was ·also made by Mr. Shanti Bhushan to the effect of retrospective amendment in cases which may arise unckr section 123 (l) of the RP Act. We are in the present case n0t concerned with section 123{1) of the RP Act and consequently it is not neces- sary to express any opinion with regard to the impact of the amend ment upon section 123 ( 1) of the RP Act. Nor is it necessary express opinion on the point as to whether it is permissible to make a law which has the effect of creating a corrupt practice or disquali fication retrospectively and thus unseating a returned candidate as such a question docs not arise in this case. The change in the definition of the word "candidate" to which our attention has been invited by Mr. Shanti Bhushan does not impinge upon the process of free and fair elections. The fact that as a result of the above change, we have to take into account onlv the prejudicial activity of the candidate or his election agent fron~ the date of the nomination of the candidate and not from the Jate he holds himself out as a candidate does not affect the process of free It is necessary while dealing with corrupt prac <l:nd fair .elections. tice relatmg to elections to specify the period within which impugned act, alleged to constitute corrupt practice should have been done. As a result .of the amendment, the legislature has fixed the sa'd period to be a5 from the date of nomination instead of the period as from the elate on which the candidate with the election in prospect E G H A B c E F G H 488 SUPREME COURT REPORTS [1976] 2 S.C.R. It is com began to hold himself out as a prospective candidate. mon experience that the date from which a candidate holds himself out as a prospective candidate is often a matter of controversy between the parties. The result is that an element of indefiniteness and un certainty creeps in infi.nding the date from which a person can be said to be candidate. As a result of the change in the definition of candidate, the legislature has fixed a definite date, viz., that of nomi nation, instead of earlier time which had an element of indefiniteness and uncertainty about it for finding as to when a person became a candidate. Certainty is an essential desideratum in law and any amendment of law to achieve that object is manifestly a permissible piece of legislation. The choice of date was a matter for the legis lature to decide and the court cannot substitute its own opinion for that of the legislature in this respect, more so, when whatever be the choice of date, has aspects of both pros and cons. The date of nomination is normally, as in the present case, about a month before the date of polling and it is plain that most of the acts of corrupt practice are committed during this period. In any case, as men tioned above, the court cannot substitute its own opinion for that of the legislature in the choice of date. The choice of date, as observed in the case of Union of India v. M/s Parameswaran Match Works(,!) as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no rr,athemati cal or logical way of finding it precisely, the decision of the legisla ture or its delegate must be accepted unless we can say that it is very wide of any reasonable mark. One of the objects of the change effected by Act 40 of 1975 is to remove the uncertainty and set at rest the controversy as to what would be the precise date of a person in the service of the Central Government ceasing to be in such service in case he tenders his resignation. The amended law makes it clear that where the date of taking effect ot the resignation is stated in the publication in the the case of Official Gazette, it shall be that date. Similarly, in appointment of a person, the date of taking effect of such appoint ment shall be the date mentioned in the publication in the Official Gazette in case such a date is stated in such publication. The fact that the new provision creates a conclusive presumption with regard to the date of taking effect of appointment or resignation docs not mean, as is sought to be argued on behalf of the there has been an encroachl):l.ent by the legislature upon the judicial sphere. Laying down a rule of conclusive presumption in a statute with a view to remove uncertainty with regard to the date of taking effect of appointment or resignation of a Government employee cannot be characterised as an assumption of judicial power by legislature. Another object of the change effected by Act 40 of 1975 is that a candidate who is bound, in view of para 8 of Election Symbols (Reservation and Allotment) Order, 1968 to use respondent, (1, AIR 1974 SC 2349 , • \ . -· ' .. • - ,. f - . .. \ SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 489 the party symbol allotted by the Election Commission: and who can not use any other symbol, shall not suffer and be guilty of corrupt practice under section 123 (3) of the RP Act. because o~ ~he use. of It is to be assumed that Election Comm1ss1on which that symbol. is an independent body, would act fairly and properly and woul~ not allot a symbol, which is a religious symbol, to a party or a candidate. The fact that the allotted symbol was one of those suggested by party concerned would not relieve the Election Commission of duty to see that it does not allot a religious symbol to that party . Assuming that the Election Commission makes an error of judgment in this respect and allots a symbol which, in fact, is a religious sym bol, the object of the new provision is that a candidate should not be penalised because of such an error on the part of the Election Com mission. Th<: third object of the change effected by Act 40 of 1975 is that a candidate should not suffer or be held guilty of corrupt practice because of any act done by any person in the service of the Government and belonging to any of the classes mentioned in section 123 ( 7) of the RP Act in the discharge or purported discharge of his official duty. None of the three objects mentioned above has any t!lint of unconstitutionality and I find it difficult imp~gned provisions impinge upon the principle of free and e).ect10ns. to hold In referred So far as the newly added proviso to section 123 (7) is concern ed, it may be stated that the act in the discharge or purported dis charge of official duty of the Government employees above would in the very nature of things have to be of a kind which is germane to their official duties. It may include steps taken by the Government employees for maintenance of law and order or in connection with the security of a 'candidate or other persons. It would not, however, include canvassing or doing such acts which may properly be considered to be part of the election propaganda furtherance of the prospects of a candidate's election. taking action under the above provision, it must be borne in mind as stated on page 152 of Free Elections by W. J. M. Mackenzie that in the last resort "the system of free elections depends on a certain separa and politi tion of powers between administrators (or policemen) cians : there must be some public sense that police and administration serve the public, not the party leaders". What would be permissible under the above provision would be that which is conceived to be <lone in public interest and not something conceived to be done In spite of some difficulty which the personal interest of a candidate. may arise in borderline cases, this distinction must be borne in mind . If, however, because of doing something conceived in public interest, e.g., as in the present case the security arrangement for the person . holding the office of the Prime Minister, some advanta<>e may also possibly accrue to a candidate, it will have to be regard~d as <l~r;ital an? wc;ulcl no~ d~tract from action taken under the above pro v1~1on b~mg 111 pubhc mterest. As against that, any action with a view to fortlier the personal interest of a candidate should not be allowed to be camouflaged as an action taken in public interest. Care must be taken to ensure that public interest is not allowed B c D E F G H A B c D E F G H 490 SUPREME COURT REPORTS [1976j 2 S.C.R. decrencrate into a cloak for furtherance of the personal interests of a ca~didate in an election. The· discharge or purported disc!)argc of ollicial duty must necessarily have public interest and not tlic per sonal interest of a candidate as its basis. The courts while dealing with the newly added proviso to section 123 (7) should com.true it. if reasonably possible, in such a manner as would sustain the validity In case there is abuse of the above provision, the oi that proviso. proper course, as already mentioned, would be to strike down action taken under the proviso and not the proviso itself. One other change brought about by Act 40 of 1975 is th~ addi tion of an explanation in section 77 of the RP Act. According to. respect of any the new explanation, any expenditure incurred in arrangements made, facilities provided or any other act or ~hing done by any person in the ~ervice of the Government and belongtng to any of the ('.lasses mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the provisa to that clause shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate or by his election agent for the purposes of section 77 ( 1). The validity of the above l'Xplanation in a great measure is linked with the validity of the new proviso to section 123(7) of the RP Act, and reasons stated for upholding the proviso to section 123 (7), the new explanation to section 77, it seems, may have also to be upheld. It is not neceGsary to dilate upon this aspect because even without the · tligh invoking the aid of the new explanation to section 77, Court has found, and I see no reason to disturb that finding, that the total expenses incurred by the appellant were less than the prescribed' limit. Argument has also been advanced that validity of Act 40 of 1975 cannot be assailed on the ground that it strikes at the basic structure of the Constitution. Such a limitation, it is submitted, operates upon an amendment of the Constitution under article 368 but it does not hold good when Parliament enacts a statute in exercise of powers under article 245 of the Constitution. the provisions of Act 40 of 1975 with which we are concerned hav"' not been shown to impinge upon the process of free and fair elections and thereby to strike at the basic structure of the Constitution, it is I would, therefore, not necessary to deal with the above argument. hold that the provisions of Act 40 of 1975 with which we are con cerned are valid and do not suffer from any constitutional infirmity. In view of my finding We may now deal with cross appeal No. 909 of 1975. Mr. Shanti Bhushan has not pressed the challenge to the findings of the High Court on issues 4 and 7. He has, however, assailed the finding of the High Court on issue No. 9 whereby the High Court held that the appellant incurred an expenditure of Rs. 31,976.47 on lier elec tion as against In Ex. 5, Return of her election expenses, the appellant showed her total election expenses to be Rs. 12,892.97. The respondent in para 13 of the election petition alleged that the appellant and her election agent had incurred expenditure much beyond the prescribed limit of limit of Rs. 35,000. the prescribed a. I' • • ... -• . - ., ' .• - , ) \ SMT. INDJRA GANDHI v. RAJ NARAIN (Khanna, /.) 49i Rs. 35,000 and thereby committed corrupt practice ~ndcr section o~ the 123 ( 6) of the RP Acl. The respondent gav~ some items expenditure which were alleged to have been mc?rred by the ai:pel- lant and her elcctiuu agent but were not shown m the return of the election expenses. The material items with which we are now con cerned were as under : (i) The hiring charges of the vehicles specified in para 13(1)-mer Rs. 1,28,700. (ii) (iii) (iv) (v) (vi) (vii) (viii) ...,; A... ... specified c•f vehicles Cost of petrol and diesel for the vehicles in para 13(1)-over Rs. 43,230. Payments made to the drivers fied in para 13(1)-over Rs. 9,900~ Repairing and servicing charges of vehicles speci fied in para 13(1)-0ver Rs. 5,000. Payment; made to the workers engaged purpose of. election propaganda-over Rs. 6,600. Expenses on the erection of rostrums for the public meetings addressed by the appellant in the consti tuency on · February 1 and 25, 1971--ovcr Rs. 1,32,000. Expenses on arrangement of loudspeakers various election me~tings of the appellant addressed on February 1 and 25, 1971-over· Rs. 7,000. Expenses on motor transport for the conveyance of the appellant and her party to the place of her elec- tion meetings on February 1 and 25, 1971-over Rs. 2,000. The High Court held that the respondent had failed to prove the first five items. As regards the expenses for the ~rection of rostrums for the public meetings addressed by the appellant on February 1 and 25,, 1971, the High Court found that four meetings were addressed by the appellant in the constituency on February 1 and six meetings on February 25, 1971. The cost of a rostrum in each meeting came to Rs. 1,600. The total expenses of the ten rostrums thus came to Rs. 16,000 and the same, it was held, was liable to be added to the amount shown in the return of election expenses of th~ appellant. The amount of Rs. 16,000 included the money paid by the District Congress Committee as its share of the cost of rostrums. Regarding the expenses of loudspeakers, the High Court found that the total expense of Rs. 800 had been incurred on the installation of !omhpeakers meetings addressed by the appellant on February 1 and 25, 1971. In addition to that, the High Court added Rs. 1, 151 as cost of energy supplied for the functioning of the loudspeakers. The total amount which was added to the election expenses of the appellant on account of the loudspeakers thus came to Rs. 1,951. An amount of Rs. 232.50 was found by the High COurt to have be.;:n incurred by the appellant for her transport on February 1 and 25, 1971. Adding A B c D E F G H A <; E G H 492 SUPREME COURT REPORTS (1976] 2. S.C.R. aggregate of Rs. 16,000, Rs. 1,951 and Rs. 232.50 in all Rs. 18,183.50, '.O the figure of Rs. 12,892.97 which had been shown by the appellant 1~ her return, the total expense incurred by the appellant on her elec twn was found by the High Court to be Rs. 31,976.47. In appeal before us Mr Shanti Bhushan has assailed the finding of the High Court in so far as the High Court has not accepted the case of t~~ respondent that the appellant in~urred expenses on the cost of hmn&, petrol and the salary of the drivers for 23 vehicles. It may be mentioned that the respondent in para 13 of the election petition referred to 32 vehicles which were alleged to have been hired by the appellant, but both before the High Court and in appeal before us, lear.ned counsel for the respondent has confined his argument to 23 vehicles. · To appreciate. the point of controversy between the parties! it may be necessary to set out some material facts. Section 160 of the RP Act provides inter alia that if it appears to the State Government that in connection with an election held within the State, any vehicle is needed or is likely to be needed for the,, purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during the conduct of such election or transport of any officer or other person for performance of any duties in connection with such election, the Government may by order in writing requisition such vehicle, provided that no vehicle which is being /awfully nsed by a cmulidate or his agent for any puroose con nected with the election of such candidate shall be requisitioned until It appears that 23 vehicles, the completion of the poll at such election. described at some places as cars and at other places as jeeps,. were re quisitioned by the district authorities Rae Bareli for election purposes under the above provision. On February 23, 1971 Dal Bahadur Singh, who was the President of the District Congress Committee Rae Bareli, addressed a letter to the District Officer Rae Bareli praying that the above mentioned 23 v·~hicles, of which the numbers were given, had been taken by the District Congress Committee Rae Bareli . for the Parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat. There are, it may be stated, seven Assembly constituencies in Rae Bareli district. Out of them, five Assembly constituenc;ie~ con stitute Rae Bareli Parliamentary constituency. One of the As.sembly constituencies in Rae Bareli district in part of Ram Sanehi G~.t Par liamentary constituency, while the seventh Assembly constituency is part of Amethi Parliamentary constituency. On February 24, 1971 a reply was sent on behalf of the District Election Officer of Dal .Baha dur Singh regarding the latter's request for release of 23 vehicles. It was pointed out in the reply that it was not possible to release the vehicles in favour of any party for election purposes. At the same time, it was mentioned that the question of releasing of the vehicles could be considered at the request of a candidate or his election agent. On receipt of the above reply. Dal Bahadur Singh sent the same to Yashpal Kapur on February 24, 1971 along with note A43, the mate rial part of which reads as under : "You are requested tn kindly write a Jetter with your recommendation to the Election Officer so that t11e • . ;.._ - t '• -.. • -.. SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 493 taken by the District Congres~ C?mmittee may be release~t I have tried to find out Shn V1dyadhar Vaipayee who is contesting the election from Amethi Parliamentary Consti tuency and Shd Baiznath. Kure~l who election from Ram Saneh1 Parhamentary Constituency, but they are not available. You are, therefore, requested write the above letter to the District Election Officer posi tively so that the election work of all the three Parliamen tary Constituencies which is going on, on behalf of District Congress Committee, may not suffer." con.testing · been taken by the District Congress Committee Rae Bareli On February 25, 1971 Yashpal Kapur addressed a letter to the Dis trict Officer Rae Bareli stating that the 23 vehicles in question had three Parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat. The District Officer was requested to release the 23 vehicles without t'ielay. Yashpal Kapur also enclosed with letter the note of Dal Bahadur Singh. The 23 vehicles, it would appear, were thereafter released by the District' Election Officer. The appellant in para 17 (b) of her written statement, admitted that those 23 vehicles were used by the District Congress Committee Rae Bareli for election work in the three Parliamentary constituencies of Rae Bareli. Amcthi and Ram Sanehi Ghat. The High Court, in not accepting the case of the respondent in respect of the 23 vehicles, observed that there was nothing to show that the above mentioned vehicles had been obtained on hire or were obtained gratis. There was also, according to the High Court, no cogent material to show that the said vehicles had been engaged and used in connection with election work of the appellant. ...... . ' \ Mr. Shanti Hhusl;an, while assailing the finding of the High Court. has submitted that, as five out of the seven Assembly consti tuencies in Rae Bareli district were in Rae Bareli Parliamentary said 23 constituency, five-seventh of the expenses incurred on the vehicles should be added to the election expenses of the appellant . I find it difficult to accede to the above submission because of paucity of the material on record. There is no cogent evidence to show that the 23 vehicles in question were used for the election of It is no doubt true that the said 23 vehicles were the appellant. used by the District Congress Committee Rae Bareli for election work in the three Parliamentary constituencies, viz., Rae Bareli, Amethi and Ram Sanehi Ghat. The record is, however. silent on the point as to what extent they were used in Rae Bareli Parliamentary consti tuency. One can in the above context visualise three possibilities·: (i) As the appellant, who was the Prime Minister of the country, was contesting from Rae Bareli consti~ tucncv. the District Congress Committee concen- trated its attention on that constituency and used the 23 vehicles mostly for the election work constituency. A B c D E F G H 494 A (ii) SUPREME COURT REPORTS [ 197 6] 2 S.C.R •. As the appellant bad a mass appeal the District Congress Committee office bearers thought that the Rae Bareli constituency was very safe and, there fore, concentrated attention on the other two Par liamtntary constituencies and used the 23 vc:1ich:s mostly for those two constituencies. Equal attention was paid to all the three consti tuencies and there was proportionate use of vehicles for the three constituencies. (iii) B c D E F c· H - If so, it was, Mr. Shanti Bhushan would have us to accept the first or possibility and would rule out the second. in my opinion, essential for the respondent to lead some evidence regarding the use of the 23 vehicles. He did nothing of the kind. Neither the owners nor the drivers of those vehicles were examined as witnesses. There was also, as mentioned earlier, no other cogent evidence show that those vehicles or any of them were used.Jor the appellant's· election in the Rae Bareli constituency, and if so, to what extent. The respondent himself did not come into the witness box to substantiate the charge against the appellant regarding the use of the 23 vehicles. The fact that Dal Bahadur Singh was not examined as a witness on in of the the appellant would not warrant the filling behalf of gaps and lacunae in the evidence adduced by the respondent by a It is no doubt true that by using a process akin to guess work. vehicle for the furtherance of the prospects of candidates in more than one constituency one should not be allowed to circumvent the salutary provisions of the RP Act in this respect. To prevent such circumvention, it is essential that evidence should be led to show as to what was the extent of the user of the vehicle in the constituency In Hans Raj v. Pt. Hari Ram & Ors. ( 1) a jeep hired concerned. by the Congress Committee during elections was used in more than one constituency, including that of the returned candidate who was a Congress nominee. Question arose as to whether the expense in curred in connection with that ieep could be included in the election expenses of the returned candidate. While answering the question in the negative, Hidayatullah C.J. observed : '·The bill stands in the name of the Congress Committee and was presumably paid by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty "is that the general in other constituencies. As we Congress propaganda stated, the jeep remained in Chalet and at Mubarakpur. No doubt Chalet is the home town of the returned candidate and his oflJcc was situated at Mubarakpur but that does not indi cate that the jeep was used exclusively on his account. The petrol chart shows that petrol was bought at several pumps, this jeep was used also for --------- - - - - - - - ~ ~ ~--- (1) 40 E.L.R. 125 .. SMT. JNDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 495 both inside the constituency and outside. This shows, as docs the evidence, that the jeep was used not only in this lf this be constituency but also in the other constituencies. true, then, it is almost impossible on th~ evidence as exists in this case to decide how much of the use went for the benefit of the returned candidate and how much for the use of candidates in the other constituencies also put up by In this situation it is difficult to the Congress Committee. say that the whole of the benefit of the jeep went returned candidate and once we hold that the entire benefit did not go to him, we are not in a position to allocate the expenses between him and the other candidates in the other constituencies." Reference has also been made during the course of arguments by Mr. Shanti Bhushan to some entries in a register of the Congress Committee. The High Court declined to place any reliance on those entries as those entries had not been proved. I see no cogent ground to take a different view. Our attention has been invited by Mr. January 22, 1971 of Shanti Bhushan to a report in issue dated Swantantra Bharat wherein there was a reference to the Personal Secretary of the Prime Minister having reached Rae Bareli with a caravan of 70 motor vehicles. No reliance can be placed upon that report as the correspondent who sent that report was not examined as a witness. The other difficulty which I find in accepting the submission of Mr. Shanti Bhushan in respect of 23 vehicles is that there is no evi dence to show that any payment was made for the use of the above mentioned vehicles. There is also nothing to show that those vehicles were engaged on hire. As mentioned earlier, the owners and drivers of I, therefore, find no those vehicles were not examined as witnesses. sufficient ground to interfere with the finding of the High Court respect of the above mentioned 23 vehicles. B c D E F Mr. Shanti Bhushan has next assailed the finding of the High Court in so far as it has held that the respondent has failed to prove that the appellant incurred an expense of Rs. 6,600 on workers engaged I, however; find no infir for the purposes of election propaganda. mity in the finding of the High Court in this respect as there is no cogent evidence whatsoever that any expense was incurred for engag ing workers for the election work of the appellant. The case of the appellant is that her workers did not work voluntarily and without receipt of any remuneration. · Apart from challenging the findings of the High Court in respect of 23 vehicles and the alleged payment to workers, Mr. Shanti Bhushan has also referred to some other circumstances with a view to. show that the election expenses of the appellant exceeded the pres cribed amount of Rs. 35,000. It has been pointed out that a cheque for Rs. 70,000 was sent by the Provincial Congress Committee .. G H -... .. ; I A B c D E F G H 496 SUPREME COURT REPORTS [1976] 2 S.C,R. Dal Bahadur Singh, President of the District Congress Committee Rae Bareli, and the same was er.edited in Dal Bahadur Singh's account after deducting of the bank charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount Rs. 40,000 and Rs. 25,000 on March 4 and 6, 1971 respectively nearabout the days of poJling. It is urged that the said amount must have been spent for the pur pose of the elections. There was no reference to the said amount of Rs. 70,000 in the petition. There is also no reference amount of Rs. 70,000 in the judgment of the High Court or in the respondent grounds of appeal. As such, I am of the view that the should not be allowed to set up a case against the appellant on basis of the bank entries in the account of Dal Bahadur Singh. Reference has further been made by Mr. Shanti Bhushan expenses which were alleged to have been incurred on the telephone charges and the meetings addressed by Yashpal Kapur. The High Court rejected the submission in this respect on behalf of the respon dent in the following words : telephone connection and lighting arrangements made '·Learned counsel for the petitioner urged that from the evidence on record, it transpires that expenditure was also incurred on telephone charges; on the meetings addressed by Shri Yashpal Kapur within the Constituency during the period of election; on the election material viz., pamphlets, posters, etc. and oa some meeting~ addressed by the respondent No. 1. According to learned counsel, these expenses are also liable to be added to the election expenses of the respondent No. 1. None of these In fact, expenses were, however, pleaded in the petition. till the commencement of the arguments in the case, respondent No. 1 could not even anticipate that the peti tioner shall rely on these expenses for the purpose of his It will, therefore, be prejudicial to the interest of res case. pondent No. 1 if the aforesaid expenses are consideration. The submission made by learned counsel for the petitioner is accordingly negatived." I am in full agreement with the above observations of the High Court and find no cogent ground to take a different view. It may be stated that in view of the new explanation added section 77 of the RP Act by Act 40 of 1975, the amount of Rs. 12,000 which represented 75 per cent of the expenditure incurred on the construction of 10 rostrums borne by the Government, cannot the appellant. The be included in the total election expenses of High Court was also inclined to hold that said amount of Rs. 12,000 could not be included in the appellant's expenses. The High Court, however, included the total amount of Rs .. 16,000 in the election expenses of the appellant upon the assumption appellant had not disavowed that expenditure. Be that as it may, the fact remains that the High Court has found on issue No. 9 that the total expenses incurred by the appellant on her election have not ( .. t • ., I \ SMT. INDIRA GANDHI v. RAJ NARAlN (Khanna. J.) 497 been shown to exceed the prescribed limit. · I find no cogent reason to interfere with that finding. I also agree with the High Court that as the election expenses of the appellant have not been shown to exce~d t?e prescribed_ li~it of Rs. 35,000, the question of invoking a1~d flOHlg mto the vahd1ty . of Act 58 of 1974 does not arise~ Nor 1s it necessary to express an opinion about the view taken in Kanwa~lal v. Amarna~h Chawla('~) in view of the fact that even after applymg the rule laid down m that case, the total election expense of the appellant has not been shown to exceed the prescribed limit. A B So far as the finding of the High Court on issue No. 6 regarding the u$e of the symbol of cow arid calf is concerned, the matter, ~s already discussed earlier, is now covered by the amendment made m C section 123(3) of the RP Act by section 8 of Act 40 of 1975. There was .a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case (supra) that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before l conclude I should D de:il with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that relates to a fundamental right and is contained in Part III of It was also held that a constitutional amendment under Constitution. article 368. does not constitute "law" as mentioned in article 13. I also did not agree with the view taken in the case of Golaknath(2) that there was a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away the fundamental rights. I thereafter dealt with the scope of the power of amendment under article 368 and the connotation of the word "amendment" and said in this context : the E F "I am further of the opinion that amendment of constitution necessarily contemplates that the constitution has not to be abrogated but only changes have to be made in it. The word 'amendment' postulates that the old cons titution survives without loss of identity despite the change and continues even though it has been subjected to altera tions. As a result of the amendment, the old cefnstitution cannot be destroyed and done away with; it retained though in the amended form. What then is meant by the It means the retention retention of the old constitution ? of the basic structure or framework of the old constitution. A mere retention of some provisions of the old constitution (1) A.LR. 1975 S.C. 308. (2) [1967] 2 S.C.R. 762. G H -'. ' •. • A c E F G H 498 SUPREME COURT REPORTS [I 976] 2 S.C.R. even though the basic structure or framework of the cons titution has been destroyed would not amount to the reten tion of the old constitution. Although it is permissible under the power of amendment to effect changes, howso ever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch foundation or to alter the basic institutional pattern. The words 'amendment of the constitution' with all their wide sweep and amplitude cannot have the effect of ·destroying or abrogating the basic structure or framework of the cons titution. It would not be competent under the garb of amendment, for instance, to change the democratic govern ment into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the state according which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the consti tution does not furnish a pretence for subverting the struc ture of the constitution nor can article 368 be so construed as to embody the death wish of the Constitution or provides sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated lly article 368." It was further observed by me : "The word 'amendment' in article 368 must carry taking same meaning whether the amendment relates away or abridging fundamental rights in Part III of constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of t-he Constitution other than those in Part III under the power of · amendment conferred by article 368. The same approach, in my opinion, should hold good when we deal with amend ment relating to fundamental rights contained in Part III of. the Constitution. It would be impermissible to diffe·· rentiate between scope and width of power of amendment when it deals with fundamental rights and the scope and width of that power when it deals with provisions not con cerned with fundamental rights." It would appear from the above that no distinction was made by me is con so far as the ambit and scope of the power of amendment cerned between a provision relating to fundamental rights and pro visions dealing with matters other than rights. The limitation inherent in the word "amendment" according to which it is not permissible by amendment of the Constitution to change basic structure of the Constitution was to operate equally on articles pertaining to fundamental rights as on other articles not pertaining fundamental • . -· .. \ SMT. INDIRA GANDHI v. RAJ NARAIN (Khanna, J.) 499 ·do those rights. This was further made clear by the following obser -vations on page 688 : "Subject to the retention of the basic structure or frame work of the Constitution, I have no doubt that. t~e P?wer o[ amendment is plenary and would include w1thm itself the power to add, alter or repeal t~e various articles includ" ing those relating to fundamental nghts." .. Proposition (vii) of the summary of my conclusions on page 758 of .the judgment also bears it out and the same reads as under : "(~ii) The power of amendment und~r ~rticle 368 do~s not include power to abrogate the Const1tut10n nor docs 1t include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various artfoles of the Constitution, including those relating to fundamental rights as well as. those which may be said to relate to essential features. No part of a amendatory fundamental right can claim immunity from process by being described as the essence or core of right. The power of amendment would also include within itself the power to add, alter or repeal the various articles." It has been stated by me on page 685 of the judgment (already :.;reproduced above) that the secular character of the State, according to which the State shall not discriminate against any citizen on _ _ground of religion only cannot likewise be done away with. The . above observations show that the secular character of the Constitu tion and the rights guaranteed by article 15 pertain to the basic struc ture of the Constitution. The above observations clearly militate fundamental .against the contention that according to my judgment Tights are not a part of the basic structure of I also dealt with the matter at length to show that the right to property ·was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was .a part of the basic structure of the Constitution . the Constitution. Before parting with this case I must acknowledge the assistance ·we received from the learned counsel for the parties as also learned Attorney General and Solicitor General In spite of the political overtones, the case ·points of controversy. · was argued forcefully yet without generating any heat and in an at It has been said by Holines J. that . mosphere of befitting calmness. ·great cases like hard cases make bad law. For great cases are called : great, not by reason of their real importance iil shaping the law of the immediate overwhelmino future, but because of some accident of . interest, whic~ api;ieals to the fe_elings and distorts judgment'. , Thes~ 1mmediat~. mterests exercise a kind of hydraulic pressure [Nattonal Secuntzes Co. v. U.S. Q1 ) ]. It, therefore, became essential ~to rid the case of all the embellishments resulting from the political resolving (l) 193 U.S. 197 (at 400-1) [1904]. A B c 0 G H .. A B c D E F G H 500 SUPREME COURT REPORTS [1976] 2 S.C.R. overtones and to bring it to a level which is strictly judicial, so th~t the various constitutional and legal aspects of the matter may I?\: examined in a dispassionate atmosphere. Learned counsel for the parties made a significant contribution towards the attainment of this objective. in Kesavananda produce what was said by one of us (Khanna J.) Bharati's case (supra) at page 755 : It may not be inappropriate in the above context to ·; "That all constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in thi< calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy lo their decision have to keep aloof from the din and contro versy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the constitution and the laws without fear or favour ancl in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision." - judgment of As a result of the above, I accept appeal No. SS7 of 1975 filed by Shrimati Indira Nehru Gandhi, set aside the High Court in so far as it has found the appellant guilty of corrupt practice under section 123 (7) of the RP Act and has declared her election to the Lok Sabha to be void. The order that the appella11t shall accordingly stand disqualified for a period of six years as pro'- vided in section SA would also consequently be set aside. The clec~ tion petition filed by the respondent shall stand dismissed. Appeal No. 909 of 1975 filed by Shri Raj Narain is dismissed. Looking to all the circumstances, more particularly the fact that the election petition filed by the respondent is being dismissed because of changd made in law during the pendency of the appeal, the parties are directed to bear their own costs throughout. MATHEW, J. In the election petition filed by the respondent in 'rc&pon Civil Appeal No. SS7 of 1975 (hereinafter referred to as dcnt') , seven charges of corrupt practice were made against appellant therein (hereinafter called the 'appellant') and it was pray ed that the election of the appellant be set aside. The learned judge who tried the petition found that two of the charges had been made out but that the rest of the charges were not substantiated. He set aside the election of the appellant with the result that the appellant incurred the disqualification for a period of six: years as visualized in It is section SA of the Representation of the People Act. 1951. against this judgment that Civil Appeal No. 8S7 of 1975 has been filed. " ) The respondent has filed a cross appeal (Civil Appeal No. 909 of. 1975) challenging the findings of the High Court in respect of the other charges of corrupt practice. • I J I • SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 5 0 l During the pendency of these appeals, the parliament pa~s.:d the Election Laws (Amendment) Act, 1975 on 6-8-1975 by which cer tain amendments were made in the provisions of the Representation of the Poople Act, 1951, and the Indian Penal Code. On 10-8-1975, the parliament, in the exercise of its constituent power, passed the Constitution (Thirty-Ninth Amendment) Act, 1975 (hereinafter referred to as the 'Amendment'). By the Amendment, Article 71 of the Constitution was substituted by a new Article and that Article provided by caluse (1) that, subject to the provisions of the Constitution, parliament may, by law, regulate any matter relat ing to or connected with the election of a President or Vice-President, including tl\.C grouncls on which such election may be questioned. By clause (2) of the Article it was provided that all doubts and dis putes arising out of 01: in connection with the election of a President or Vice President shall,be inquired into and decided by such autho rity or body in such manner as may be provided for by or under any law referred to in clause (1). Clause (3) stated that the validity of any such law referred to in clause · ( 1) and ·the decision of any authority or body under such law shall not be called iif question in any court. '-._- ' Uy clause. 4 of the Amendment, Article 329-A was inserted 1:ead ing as fellows : "329-A. Special provision as to elections n:ent in the case of Prime Minister and Speaker : Pi:11'lta ( 1) subject to the provisions of Chapter II of Part V (cxcc~t sub-clause (e) of clause (1) o.f article 102], no clcctim1-- ( a) to either House of Parliament of a person who holds the office of the Prime Minister at the time of such election or is appointed as Prime Minister after such election; (b) to the House o.E the People of a person who holds the office of a Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election : shall be called in question except before authority in clause [not being any such authority as is referred to (b) of Article 329] or body and in such manner as may be provided for by or under any law made by Parliament and any such Jaw may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned. - (2) The validity of any such law as is referred to dausc ( 1) and the <lecisiol). of any authority or body under s;_ich Jaw shall not be called in question in any court. A B c D E F G H 11-(26 S.C.L/76 ,. A B c D E F G H 502 SUPREME COURT REPORTS [1976) 2 S.C.R. (3) Where any person is appointed as Prime Minister _ · or, as the case may be, chosen to the office of the Speaker of th() House of the People, while an election petition refer red to in clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition . shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the o~ce of the Speaker of the House of the People, but such elect10n may be called in question under any such law as is referred to in clause (1). (4) No law made by Parliament before the com mencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void, or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed- always to have been void and of no effect. - (5) Any appeal or cross appeal against any such order of any court as is referred to in clause ( 4) pending the Constitution diately before (Thirty-Ninth Amendment) Act, 1975 before the Supreme Court shall be disposed of in conformity with the provisions of clause ( 4). the commencement of . ( 6) The provisions of this article shall have effect notwithstanding anything contained in this Constitution." The respondent contended that clause ( 4) of Art. 329-A [here inafter referred to as 'clause ( 4) '] is invalid for the reason that some of the basic structures of the Constitution have been damaged by its enactment. The argument was that although the declare that the election of the appellant shall not be deemed to be void and the judgment of the High Court to be void on the basis that no law relating to election petition and matters connected therewith would apply to the election, yet the amending body could not have held the election to be valid as it did not ascertain the facts relatin" "' amending body SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, !.) 50 3 10 the election and apply the relevant l~w to. them .. Counsel su~- mitted that by its very nature, an election dispute m a democratic system of government raises questions which can ?e decided ~nly by the exercise of judicial power; that by retrospectiyely rende~mg the forum for investigation into the complaints regardmg· the validity .of the election of the appellant coram non judice, and by the amendmg .body judging its validity without ascertaining the facts and applying the relevant law .essential feature 'of the democratic structure of namely, free and fair election. the Constitution, the .Amendment has fundamentally damaged an B A Counsel also submitted that equality and rule of law are essential features of democracy; that clause ( 4) by dispensing with the appli cation of the law relating to election petition and matters connected therewith to the appellant, made an unreasonable classification among C persons similarly situated with reference to the purpose of the law. The further submission was, that separation of powers is a basic structure oE the Constitution and that if it be amending body ascertained the facts regarding the election of appellant and applied the relevant law, the exercise of that power by the amending body would offend the doctrine of separation of powers and that, at any rate, this process would not result in an amendment of the Constitution by enacting a law, but oily in the passing of a judgment or sentence which can never be characteriz.ecl as a law, let alone a law relating to the Constitution of India. supposed (hereinafter referred to as Iii His Holiness Kesavananda Bharati Sirpadagalavaru v. State of 'Bharati's Kera/a and Another, etc. (1 1) case'), a majority of seven judges held that the power conferred under Article 368 of the Constitntion was not absolute. They took view that, by an amendment, the basic structure of the Constitution the basic cannot be damaged or destroyed. And, as to what are structures of the Constitution,__ illnstrations have been given by each of these judges._ They include supremacy of the Constitution, demo cratic republican form of government, secular character of the Cons titution, 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 individual secured by the various provisions of the Constitution. There was consensus ~m?ng these judges that democracy is a basic structure of the Constltut10n. I proceed on the assumption that the l~w as laid down by th~ majority in· that case should govern the deci sion here, although I did not share the view of the majority. Therefor~, if by clause ( 4) any essential feature of the ~­ cr<l;ttc republican structure of our polity as visualized by the Consti tution bas. be~n damaged or destroyed, the clause would be ultra vires the Constitut1011. (!) [1973] Supp. S.C.R. 1. D E F G H • t .. ... 1 ... A B C D E F G H

50..J SUPREME COURT REPORTS [1976J 2 S.C.R. specified One way of looking at the first part of clause ( 4) is repealed amending body bas, with retrospective effect, relating to election petition in respect o[ the persons clause ( 1) and hence the judgment rendered on the basis of the pre vious law relating to election petition became automatically void, and the amending body was merely stating the consequence of · the retrospective repeal of the law and therefore the declaration that the judgment was void was not an exercise of judicial function. On the other hand, it might be possible to view the first part of clause ( 4) as an exercise of judicial power for the reason that, even assuming that by virtue of the retrospective repeal of the law relating to elec tion petition, there was no jurisdiction in the High Court to entertain or try the election petition and pass the judgment, a repeal simpliciter did not render the judgmeµt ipso facto void and therefore, in making the declaration that the judgment was void, the amending body was performing a function which has traditionally been in the province of court. Be that as it may, I feel no doubt that the amending body, when it declared the election of the appellant to be valid, had to ascertain the adjudicative facts(!) and apply the relevant norm for adjudging its validity. If however, the amending body did not ascertain the facts relating to the election and apply the relevant norm, the declaration of the validity of the election was a fiat of a sui ge11eris character of the amending body. The concept of democracy as visualized by the Constitution pre supposes the representation of the people in parliament and legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set o[ laws and rules making provisions with respect to all matters relat ing 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 clcc- 1 tions; a~d. (3) there sho~ld be a i.udicia! tribun3:1 to deal with dis f putcs ansmg out of or m connect10n with elect10ns. Articles 327 and 328 deal with the first of these requisites, article 324 with the second and article 329 with the third requisite [sec N. P. Ponnu swami v. Returning Officer, Namakkal Constituency and Othcrs(2) 1. -- (1) "Adjudicative facts are facts about the parties or their activities businesses and properties usually answering the auestions of who did what. where.' when. how why, with what motive or intent; adjudicative facts are roughly the kind of fact~ that go to a jury in a jury case. Legislative facts do not usually concern the diate parties but are general facts which help the tribunal decide questions of law' policy and discretion." "Facts pertaining to the parties and their activities that is, adiudicative facts are intrinsically the kind of facts that ordinarily ought not to he determined with'. out giving the parties a chance to know and to meet any evidence that mav be unfavourable to them. that is, without providing the parties an onportunity for trial." (see K.C. Davis : "The Requirement of a Trial-type Hearing", 70 Har\', L. Rev. 193 at 199). (2) [1952] S.C.R. 218 at 229. • .. .. • • , .. • S!'.1T. INDIRA GANDHI v. RAJ NARAIN fl.\Jatlzetv, J.} ' 505 Article 329(b) envisages the c~allenge,to a~ election by a peti tion to be presented to such author~ty as the parlian:cnt may,.by ~a:"', prescribe. A law relating to election should con.tam the . r_equ1S1te qualifications· for candidates, the method of ~otmg, . defimt10n of corrupt practices by the candidates and their election agents, the forum for adjudication of election disputes _and other cognate matters. It is on the basis of this law that the.question whether there has been a valid election has to be determined by the authority to which the petition is presented. _And, when a dispute is raised as regards the the authority validity of the election of a particular candidate, entrusted with the task of resolving the dispute must necessarily exercise a judicial function, for, the process consists of ascertaining the facts relating to the election and applying the law to the facts so ascertained·. In other words, it is obvious that a power must be lodged somewhere to judge the validity of tl1e election, for, otherwise, there would be no certainty as to who were legitimately chosen as members, and any intruder or usurper might claim a seat and thus trample upon the privileges and liberties of the people. tions .\vould become, under such circumstances, a mockery. In whichever authority the power is lodged, the nature· of the function is such that it requires a judicial approach. It cannot be resolved on considerations of.political expediency . Indeed, elec- · It was contended for the appellant that, in England, it was House of Commons which originally decided election disputes con cerning its members, that it was only in 1770 that the function was delegated to committees and, therefore, parliament the proper forum for deciding election disputes of its members as it is one of its privileges. I think, at the time our Constitution was framed, the deci sion of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105 (3), could not be a privilege of parliament in this country. Before the ·year 1770, controverted elections were tried and deter mind by the whole House of Commons as mere party questions upon "In order which the strength of contending factions might be tested. to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law; which, though composed of its own members, should be appoint ed so as to secure impartiality and the administration of justice according to the Jaws of the land under the sanction of oaths". The - principle of the Grenville Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of. election petitions. And, at present, by Part III ·of Representation of the People Act, 1949, the trial of -controverted cl~ctions is confided to judges selected from the judiciary in the appro priate part of the United Kingdom. ·Provision is made in each case for constituting a rota from whom these judges are selected. The J!ouse has no cognizance of these proceedings until their determina !Ion, when the judges certify their determination. The Judges are to ~.ake a report in any case where a charge !ms been made petition of corrupt and illegal practice l1aving been committed at an the - A B c D E F G H 506 SUPRE1fE COURT REPORTS [1976] 2 'S.C.R. A election; and they may also make a special report on any matter arising which they think should be submitted to the House(!). Article 1, Section 5 ( 1) of the Constitution of the United States of America provides that each House shall be the judge of the elec tions, returns and qualifications of its own members. In whichever body or authority, the jurisdiction is vested, exercise of the jurisdiction must be judicial in character. This Court has held that in adjudicating an election dispute an authority is per forming a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court decision notwithstanding the provisions of Article 329(b) [sec Durga Shankar Mehta v. Thakur Raghuraj Singh and others(")]. r.gainst In Barry v. United States Ex. Rel. Cunning/Jame), it was held that in exercising the power to judge of the election returns and qua lifications of members, the senate acts as a judicial tribunal. It might be that if the adjudication of election disputes in respect of its members had been vested in each of the Houses of Parliament by the Constitution, the decision of the House would have been final. That would have been on the basis of the doctrine of the political question, namely, that the function has been exclusively committed textually to another agency. I am aware that the doctrine of political question has no hospitable quarter in this Court since the decision in Madhav Rao Scindia v. Union( 4 ). But I venture to think that the 1 doctrine alone can explain why the courts abstain from interfering with a verdict on an impeachment of the President for violation of the Constitution, a function essentially judicial(") . An election dispute has a public aspect in that it is concerned more with the right of a constituency to be represented by a parti cular candidate. But it does not follow from the public character of the controversy that there is no lis between the parties to the election contest, and that the lis can be resolved otherwise than by ascertaining the facts relating to the election, and applying the relevant law : "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. This is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power." ( 6) (1) See Erskine May's Parliamentary Practice, 18th edition (1971), pp. 29-31. (2) [1955] 1 S.C.R. 267. (3) 73 L. Ed. 867. (4) A.LR. 1971 S.C. 530. (5) See Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, at pp. 7-9. (6) Justice Holmes in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, at 226 B c D E F G H • .. ' ' SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, !.) 507 v. The Privy Council had occasion to consider this question :in United Engineering Workers' Union Devanay~gam(1). The judgment of the majority was delivered by 1:-ord. D1lhorne. Lord Guest and Lord Devlin dissented. The question m the case was whether the President of a labour tribunal in Ceylon was the hold~r of a judicial office. If so, as the man in question had n?t been appointed in the way the Constitution of Cerlon reqmre~ for appointments of judicial officers, .whether the ,tn?unal wa~ without jurisdiction. It is clear from the iudgme.nt of tneir · Lordships of t~c minority that judicial power is the exerc1s~ of a po:-ver oi;i the basis of pre-existing law. At pp. 384-385, therr Lordships said : "Another characteristic of the judicial power is that it is concerned with existing rights, that is, those which parties actually have at the inception of the suit and not those which it may be thought they ought to have; it is con cerned with the past and the present and not with future." According to the historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes b.inding on all persons over whom the legislature exercises legislative power : the judicature applies alrea¢ly existing law in the resolution of disputes between particular parties : and judges may not deviate from this duty. This view of the distfu,c tion between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompro misingly in describing functions as legislative or judicial. Thus De Lolme said that courts of equity as then existing in England had a legislative function. They are, he said, a kind of inferior experimen tal legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the cou~ts of common law, nor th,e legislature have asi yet found it convenient or practicable to establish any( 2 ). Though this would show that neither for logic nor in language has the boundary between legislation and the distincti<;m adjudication ever been rigidly and clearly drawn, between the two is well established. I If, therefore, the decision of the amending body that the election of the appellant was valid was the result of the exercise of judicial power or of despotic discretion governed solely by considerations pf potitical expediency, the question is, whether that decision, though couched in the form of an enactment, can be characterized as ~ amendment ofl the Constitution. The constituent power is the power to frame a constitution. The f)'.:ople of India, in the exercise of that power, framed the Constitution and it enacts the basic norms. By that instrument, the people confer red on the amending body the power to amend by way of addition, It is 1'0t variation or repeal any of its provisions (Article 368). (1) [1968] A.C. 356. (2) see the Constitution of England, New Ed. (1800) p. 149. ' • A B c D E F G H 508 SUPREME COURT REPORTS (1976] 2 S.C.R. A. necessary to. go in detail. into the question whcihcr the power to amend is co-extensive with the constituent power oe the people to frame a constitution. In Bharati's case, I said (1) : B c D E F G H ". . . . under the Indian Constitution, the origi;nal sovereign~the people-created, by the amending clause of the Constitution, a lesser sovereign, almost co-extensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Rad:in, the "pro-sovereign'', the holder of the amending power under the Constitution." I fully appreciate that 'sovereign', if conceived of as an omnipotent being, has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has theological and religious overtones. Nevertheless, as the practice has become inveterate, it will only create confusion if any departure made in this case flrom the practice. If it i51 made clear that sovereign is not a 'mortal God' and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harliuul consequence. " 'Legal sovereignty' is a capacity to determine the actions of persons in certain intended ways by means of a law . . . . where actions of those who exercise the authority, in those respects in which they do exercise it, are not subject to any exercise by other persons of the kind of authority which they are exercising" ( 2 ). The point to be kept in mind is that the amending body which exercisres the const:ituent power of the legal sovereign, though limited by virtue of the decision in Bharati's case, can express itseff only by making laws. The distinction between constitution law and ordinary law in a rigid constitution like ours :is that the validity of the constitutional law cannot be challenged whereas that of ordinary law can be challenged on the touch-stone of constitution. But constitutional law is as much law. A constitution cannot consist of a string of law as ordinary isolated dooms. A judgment or sentence which is the result of exercise of judicial power or of despotic discretion is not a law as it has not got the generality which is an essential characteristic of law. A despotic decision without ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment. According to Blackstone, a law and a particular command are dis tinguished in the following manner : a law obliges generally the mem bers of a given community, or a law obliges generally persons of a given class. A particular command obliges a single person or pcr- (l) [1973J Supp. S.C.R. 1 at 794. (2) see W.J. Rees : "The Theory of Sovereignty Re-stated" in Mi11d, Vol. !ix (1950) quoted at p. 68 of 'In Defense of Sovereignty', ed. W.J. Stankie11icz. SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 509 sons whom it determines individually. Most of the laws eslablished by political superiors, are therefore general in a two-fold rnann~r : . as enjoining or forbidding generally acts of kinds or sorts; and as bmdm~ the whole community, or, at least, whole classes of its members. He then said (L) : -- "Therefore, a particular act of the legislature to confis cate the goods of Titus, or to attaint him of high treason, does not enter into the idea of a municipal law : for the ope ration of this act fs spent upon Titus only and has no rela- tion to the community in general : it is rather a sentence than a law." A B This passage was cited with approval by the Privy Council in Liyanage v. The Queen(") to show that the end product of the exercise of judi~ c cial power is a judgment or sentence and not a law. St. Thomas Aquinas (after considering the views of Aristotle; sJ. Augustine and the opinions of jurists in pandects) has saad that since the end of law is common good the law should be framed not for pr~­ vate benefit but for the common good of all dtizcns( 3 ). i - .. .. Rousseau wrote( 4 ) : "When I say that the object of laws is always general, I mean that the law considers subjects collectively and actions as abstract; never a man as an individual, nor an action as particular. . . . neither is what the sovereign himself orders about a particular object a law but a decree; not an act of sovereignty, ':but of magistracy?' - Austin draws an explicit distinction between 'Jaws' and 'particular commands'. Where a command, he says, obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, a command is occasional or particular(5). . Kelsen, after noting the distinction made by Austin has observed : "We c~n of course recognize a~ law only general norms. But. there 1s no doubt that Jaw does not consisit of general includes individual norms, i.e., norms norms only. Law which determine the behaviour of one individual in one non-recurrin~ situation and which therefore are valid only for one particular case and may be obeyed or applied only once." According to him, such norms are valid law because they are parts of the legal order as a whole in exactly the same sense as those general norms on the basis of which they have been created. He ' ' • (J) see Blackstone: Commentaries, Vol. J, p. 44. (2) [1967] 1 A.C. 259, at 291. (3) see "The Treatise on Law", Gateway Edition (1970), P- 87. (4) Contract Social, Bk. II, Chap. VT. (5) see Austin's Jurisprudence, 2nd ed., Vol. I, p. l 8. D E F G H 510 SUPREME COURT REPORTS (1976] 2 S.C.R. A B c D E F G said that particular norms are the decisions of courts as far as their binding force is limited to the particular case at hand and that a judge who orders a debtor A to return $ 1000 to his creditor B was passing a law(I). It may be noted that Kelscn made no distinction, between law creation and law-application. According to him, every act of apply ing the law involved the creation of norms. there was no distinction between creation and application of law, a view I find difficult to accept in the light of clear distinction made by the decisions of this Court between legislative and judicial functions. In his view, A statute is a general rule. A resolution by the legislature that a town shall pay one hundred dollars to Timothy Coggan is not a statute(2 ). · The mere fact that an Act to indemnify A or an Act sanctioning a pension to th~ speaker is passed by the House of Commons in England should not lead us to conclude that it is law. "The English Legislature was originally constituted, not for legislative, but for financial purposes. Its primary function was, not to make laws, but to grant supplies" (3). J. C. Carter has said that statute books contain vast masses of though in the form of laws, are. not laws in the pro matter which, per sense, that these consist in the making of provisions for the maintenance of public works of the State, for the building of asy lums, hospitals, school buses, and a great variety of similar mat ters, and that this is but the record of actions of the State in rela tion to the buslness in which it is engaged. According to him, the State is a great public corporation which conducts a vast mass of though in the form of business, and the written provisions for this, laws, are not essentially. different from the minutes of ordinary cor porate bodies recording their actio!1s ( 4 ). Walter Bagehot has said : "An immense mass, indeed of the legislation is not, in the pro per language of jurisprudence, legislation at all. A law is a generaa command applicable to many cases. The 'speical acts' which crowd the statute book and weary parliamentary committees are applicable to one case only. They do not Jay down rules according to which railways shall be made, but enact that such and such a railway shall be made from this place to that place, and they have no bearing on any other transaction". (6) ' • ' ~ ... .... H (1) Kelsen : General Theory of Law and State, (1961), p. 38. (2) John Chipman Gray : Nature and Source of Law, p. 161. (3) Courtenay Ilbert, Legislative Methods and Form~, (Oxford, 1901), p. 208 . (4) "Law, Its Origin, Growth and Function" (New York and London, 1907), p. 116. (5) "The English Constitution" (1967), World's Classics Edition (Oxford, 1928), p. 119. SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, I.) 511 "When the authors of books on jurisprudence write about' law, when professional lawyers talk about law, the ~ind of . law ~~out which they are mainly thinking is that whic~ 1s found 111 ~u~t1man's Institutes, or in the Napoleonic Codes, or 111 the New. Civil Code of the German Empire, that is to say, the li~gal ~·11les wh1c'.1 rel~te to contracts a11cl torts, to property, to family re/atwns and mherztance, or else to law of crimes as is to be found in a Penal Code"(1). A John Locke was of the view that 'legislative authority is to act in a particular way .... (and) those who wield this authority should make only general rules. They arc to govern by promulgated estab lished laws not to be varied in particular cases' (2) . Perhaps the most exhaustive treatment of the question of the necessity for generality in law is to be found in "Jurisprudence, !>;1en and Ideas of the Law" by Patterson. (sec Chapter V). Accordmg to him, the generality of a ·law depends upon its being applicable to an indefinite number of human beings and that is the most signifi cant aspect of law. He said that an ordinary judgment of a Court is not law as a judgment applies only to a limited number of individuals, the parties to the case. He disagreed with Dr. Kelsen's statement that the expression the judicial decision is an individual legal norm as 'individual legal norm' is a self-contradiction. To Friedmann, the most essential element in the concept of law is a degree of generality : "The first deBideratum of a system for subjecting human conduct to the governance of rules is an obvious one : there must be rules. This may be stated as a requirement of generality. Here as in so many other fields, John Austin's distinction was basically right, but too rigidly drawn." c D E Friedmann was of the view that a community which had no general prescription at all, but only an infinite multitude of individual com mands, would not be regarded as having a legal order. It would dis solve into millions of individual relationships(3). For the purpose of this case I accept as correct the statement F of Blackstone already quoted and approved by the Privy Council in Liyanage v. The Queen (supra). I cannot regard the resolution of an election dispute by the amending body as law : It is either' a judicial sentence or a legislative judgment like a Bill of Attainder. It is no doubt tm:: that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act of the legislature, as G inflict capital punishments upon persom ·supposed to be guilty of high offences, such as treason and felony, without any conviction ordinary course of judicial proceedings. The legislature assumes judi- cial magistracy, pronouncing upon the guilt of the party without any (1) see Courtenay Ilbert, Legislative Methods and Forms, (Oxford, 1901), p. 209. (2) see the passage quoted at p. 129 of Hayek : Law, Legislation and Liberty. (3) Friedmann : "Legal Theory" 5th ed., pp. I 5-16. See also : Lon L. Fuller : H "The Morality of Law'', pp. 46-49. .. .o1 • t j A B c 512 SUPREME COURT REPORTS [1976] 2 s.c.R. of the common forms and guards of trial, and satisfying itself with proofs,, when such proofs arc with.in its reach, whether they are con formable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretio_n, being govern ed solely by what it deems political necessity or expediency, and too often under influence of unreasonable fears, or unfounded suspicions ( 1). In U.S. v. Brown(") the Supreme Court of United States of America stated that the main reason: why the power to pass bill of attainder was taken away from the Congress was : "Everyone must concede that a legislative body, from its numbers and organisation, and from the very intimate depen dence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamour, is not properly constituted to try with coolness caution, and impar tiality a criminal charge, especially in those cases in which the popular feeling is strongly excited-the very class of cases most likely to be prosecuted by t11is mode" (H). D Much the same reason will apply to the resolution of an dcction dis pute by an amending body as it consists. in all democratic countries, of an assembly of persons like parliament. Jn Liyanage v. The Queen (supra) the appellants had been charg ed with offences arising out of an abortiv·~ cou:J d'etat on January 27. 1962. The story of the coup d'etat was set out in a White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law (Special Provisions) Act was passed and it was given retrospective effect from January 1, 1962. The Act was limited in operation those who were accused of offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appel lants while they were awaiting trial, and modified a section of tllc Penal Code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empow-~red the Minister of Justice to nominate the three judges to try the appellants without a (!) see 3 J. Story, Commentaries on the Constitution of the United States (Boston, 1833), s. 1338. (2) 381 U.S. 437. (3) see Cooley, Constitutional Limitations, pp. 536-537, 8th ed., (1927)** **Macaulay's account of the attainder of Sir John Fenwick in 1696, the last in the History of the House of Commons, is particularly vivid : "Some hundreds of gentlemen, every one of whom had much more than half made up his min I before the case was open, performed the office both of judge and jury. They wer: not restrained, as a judge is restrained, by the sense of respon sibility .... They were not selected, as a j\lry is selected, in a manner which enables a culprit to exc.ude his personal and political enemies. The arbiters of the priso ner's fate came in and went out as they chose. They heard a fragment here and there of what was said against him, and a fra·gment here and there of they were what was said in his favour. During the progress of the bill exposed to every species of influence. One member might be threatened by t!re electors of his borough with the Joss of his seat. . . Tn the debates arts were practis ed and passions excited which are unknown to well constituted tribunals. but from which no great popular assembly divided into parties ever was or ever will be free". [fX MecaµJay, History of England, p. 207 (l 900)]. E F G H ' ~ j -, 4 • ) ... " " r j ( > Si\IT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 513 jw·y. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provisions of the Act as well as the nomination of the judges Subsequently, the Act was amended and the power of nmnination of the judges was conferred on the Chief Justice. The appellants having been convicted at the trial before a court of three judges nominated under the amended Act,_ went up in appeal before the Judicial Committee. It was contended that the Acts of 1962 offended against the Constitu tion in that they amounted to a direction to convict the appellants or to a Jcgislativc plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power which was outside the legislature's competence . Tlic Privy Council said in the course of their judgment that the pith and substance of the Jaw enactments was a legislative plan ex post facto to secure the conviction, that although legislation ad lwmi11e111 which is directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary, but in the present case they had no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enact ments and that it was fatal to their validity. TlK~y further said that the true nature and purpose of these enactments were revealed by conjoint impact on the specific proceedings in respect of which they were designed, and they took their colour. in particular from the altera tions they purported to make as to their ultimate objective--the punish ment of those convicted-and that these alterations constituted a grave and deliberate incursion into the judicial sphere and then, they quoted with approval the observations of Blackstone already referred to(1). These observations have gr·:::at relevance to the case in hand. True it is that their Lordships did not decide the question whether by a consti tutional ~mendment the result could have been achieved or not. At th~ time when the Amendment was passed, the appeal filed by the appellant and the cross appeal of the respondent were pending be- legislation ad homine111 fore the Supreme Court. Clause ( 4) was directed against tk course of the hearin!! of the appeals on merits as the appeal and the cross appeal were to be disposed of in accordance with t11at clause and not by applying the law to the facts as ascertained by the court. This was a direct inteiierencc with the decision of these appeals by the Supreme Court on their merits by a legislative judgment. If the amending body really exercised judicial power,, that power was exercised in violation of the principles of natural justice of audi alterdm partem. Even if a power is given to a body without spccifyi-ng: that the rules of natural justice should be observed in exercising it, the nature of the power would call for its observance. The Solicitor General contended that the amending body, in declar- ing that the election was valid was exercising its constituent legislative power; that legislative power does not adjudicate but only creates val! dity, even retrospectively, by enacting a Jaw with that effect; that valt dation is law-making; that it alters the legal position by making new law (l) see Black stone : Commentaries, vol. 1, !'. 44. A B c D E F G H 514 SUPREME COURT REPORTS [ 197 6] 2 S.C.R. A B c and that validation may take place before or after a judgment. He said that by the repeal of the provisions of the Representation of the People Act, 1951, the amending body had wiped out not only the election petition but also the judgment of the High Court and has deprived the respondent of the right to raise any dispute as regards the validity of the election of the appellant and, therefore, there was no dispute to be adiudicated upon by the amending body. He also said-I think,, in th:: alternative-that although the Jaw relating to election petitions and other matters connected therewith was dispensed with in respect of the appellant, the amending body had the ideal norms of fair and free elcc"· tion in its view for adjudging the validity of the election. He sub mitted that it was open to the amending body to, gather facts from any source and as the facts collected qy the High Court were there factually, the amending body looked into them and applied the ideal norms of election for adjudging its validity. It is difficult to understand, when the amending body expressly excluded the operation of all laws relating to electi.on petition and matt·~rs connected th~rewith by the first part of clause ( 4), what ideal norms of free and fair election it had in view in adjudging the validity of the election of the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the Jaw enacted by the appropriate legislatures. If the amending body evolved new norms for adjudging the validity of the particular election, it was the exercise of a d.~spotic power and that would damage the democratic structure of the Consti tution. Quite apart from it, ther~ is n:Othjng on the face of the amendment to show that the. amending body ascertained the facts of the case or applied any norms for determining the validity of the election. I do not think that under Article 368 the amending body was competent to pass an ordinary law with retrospective effect to validate the election. rank of It can only amend the Constitution by passing a law of the which the Constitution is made of. There is also nothing to show that the amending body validated the election with reference to any change of the law which formed the foundation of the judgment. The cases cited by the Solicitor General to show that a competent legislature has power to validate an invalid election do not indicate that there can be a validation without changing the Jaw which i.nvalidated the election. Nor do I think that a contested election can be validated without an authority applying the new law to the facts as ascertained by judicial process. If the court which the law was rendered coram non ascertained the facts and applied judice, the facts ascertained by it have ceased to be facts. There are no absolute or immediately evident facts. Only by being first ascertain- ed through legal procedure are facts brought into the sphere of law er, we may say, though it may sound paradoxical, that the competent C1rgan legally creates facts.. 'fhe courts perform a constitutive function in ascertaining facts. There is no fact 'in itself' that A has killed B. There is only somebody's belief or knowledge, They are all private relevance. Only establishment by a competent opinfons without • ' I D E F G H • > • SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 515 organ has legal relevance('). And, when that. organ was rendered coram non judice, and its judgment declared V?Id,_ th~ facts created by it perished. They ceased to be facts. ~dJu~catrve fact~ of _an election dispute cannot be gathered by legislative process behmd the back of the parties; they can be gathered only by judicial process. The amending body did not ascertain the facts by resorting to judicial process. If clause ( 4) was an exercise in legislative validation without changing the law which made the election invalid, when there ought to have been an exercise of judicial power of ascertaining the adjudi- cative facts and applying the law, the clause would damage the demo- cratic structure of the Constitution, as the Constitution visualizes the resolution of an election dispute by a petition presented to an authority exercising judicial power. The contention that there was no election dispute as clause ( 4) by repealing the law relating to election petition had rendered the petition filed by the respondent non-est, if allowed, will toll the death knell of the democratic structure of the Constitution. If Article 329 (b) envisages the resolution of an election dispute by judicial process by a petition presented to an authority as the appro priate legislature may by law provide, a constitutional amendment cannot dispense with that requirement without damaging an essential feature of democracy, viz., the mechanism for determining the real representative of the people in an election as contemplated by the Constitutio.n. A B c D All the cases cited by the Solicitor General pertain either to legis- lative validation of a void election by applying a new law to undis puted facts or to the removal of an admitted disqualification by a law with retrospective effect. E In Abeyesekera v. Jayatilake(2), the facts were : All order council of 1923 made provision as to the Legislative Council in Ceylon, but reserved to His Majesty power to revoke, alter or amend the order. The appellant, as common informer, brought an action to recover penalties under the Order from the respondent, who he alleged had sat F and voted after his seat had become vacant under its provisions by reason of his having a pecuniary interest in a contract with the Govem In 1928, after the action had been brought but before its trial, ment. an amending Order in Council was made which provided: "if any such action or legal proceeding has been or shall be instituted, it shall be dismissed and made void, subject to such order as to costs as the Court may think fit to make". as to except the office held by the respondent from its operation. The Privy Council held that. the Order of 1928 was valid, having regard to the power reserved by the Order of 1923, and was an effective defence t-0 the action, although it was retrospective in its operation and that this was no exercise of judicial power. The direction to dismiss must be understood in the light of an earlier provision in the same Order in Council which amended the law on which It also amended the Order of 1923 so G the proceedin~ H (1) see Kelson : General Theory of Law and State, p. 136. (2) [!932] A.c. 260. 516 SUPREME COURT REPORTS (1976] 2 S.C.R. A. was founded; the dismissal was thus the result of the change in the law and all that the later clause showed was that the change was to have retrospective effect and govern the rights of parties even in pend ing proceedings. The decision would be helpful here only if and in so far as the provision in clause ( 4) had followed from a change in any rule of law. c D E F G H The decision in Piare Dusadh and Others v. King Emperor( 1) concerned the validation of a sentence imposed by a special criminal court which was held. to have no jurisdiction to try the case by an order of a court. By a validation Act, the jurisdiction was conferred with retrospective effect on the special criminal court and the sentence imposed by it Vias made lawful. It was held that there was no exer- cise of any judicial power by the legislating authority, Ini Kanta Kathuria v. Manak Chand Surana( 2 ), the appellant, a government advocate stood for election to the State Legislative Assembly of Rajasthan and was declared elected. The election was challenged and the ground of challenge was that the appellant held an office of profit within the meaning of Article 191 of the Constitution. The High Court set aside the election for that reason. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly; and, by s. 2(2), the Act was made retrospectively removing the appellant's disqualification retrospectively. It was held that Act 5 of 1969 had removed the disqualification retros pectively, that Parliament and the State legislatures can legislate retros pectively subject to the provisions of the Constitution, that no limita tiolli on the powers of the legislature to make a declaration validating an election could be put, and that, by enacting the impugned Act, the, disqualification if any which existed in the 1951 Act had been removed. In State of Orissa v. Bhupendra Kumar Bose(8), the facts were as follows : Elections were held for the Cuttack municipality and 27 persons were declared elected as councillors. One B, who was defeated at the elections, filed a writ petition before the High Court challenging the elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Muni cipalities Act, 1950, as the age qualification had been published late thereby curtailing the period of claims and objections to the pre liminary roll to 2 days from 21 days as prescribed; consequently, the High Court set aside the elections. The State took the view that the Judgment affected not merely the Cuttack municipality but other muni cipalities also. Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack municipality and validating the electoral rolls prepared in respect of other municipalities. Thereupon. B filed a writ petition before the High Court contending that the Ordi nance was unconstitutional. The High Court found that the Ordinance contravened Article 14 of the Constitution, that it did not suceessfu11y (1) [19+4] F.C.R. 61. (2) (1970] 2 S.C.R. 835. (3) [1962] Supp. 2 S.C.R. 380. • - - • "! . ' SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 517 cure the invalidity and that it offended Art. 254\ 1) o~ the Constitution A as it was inconsistent with many Central Acts fa1hng m the concurrent list and was unconstitutional. The State and the Councillors appealed anid challenged the findings of the High Court. This Court held that s. 3(1) of the Ordinance effectively removed the defects ~n the electoral rolls found by the High Court by its judg ment and that it successfully cured the invalidity of the electoral roll B and of the elections to the Cuttack Municipality. The Solicitor General also cited other decisions to show that a legislature can validate proceedings rendered invalid by judgment of court. As I said, they all involved substitution of new law with retros pective effect for the old one a,nd the basic facts were all taken to · have been admitted or not controverted. If the facts are not admitted, c the legislature cannot determine them except by employing judicial process. Besides, those cases being cases of legislative validation, need not pass the test of the theory of basic structure which, I think, will apply only to constitutional ame~dment. Counsel for the appellant also brought to the notice of the court certain election validation Acts passed by the House of Commons in England. These Acts removed with retrospective effect disqualilica- · In none of these cases was an elec- tions of members of parliament. tion which was being contested validated by parliament. Nor can these instances of legislative removal of disqualification furnish any assistance to this Court for the reason that in England there is no . theory of basic structure operating as a fetter on the power of parlia- / ment. I> E It was argued for the respondent that if the amending body exer cised judicial power and held the election of the appellant valid, its act was unconstitutional also qn the ground it damaged another basic structure of the Constitution, namely, the doctrine of separation of powers. The major problem of human society is to combine that degree of F liberty without which law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty has been to discover the practical means of achieving this grand objective and to find the OJ'portunity for applying _these means in the ever-shifting tangle of ·human affairs. A large part of the effort of man over' centuries ha~ been expended in seeking a solution of this great problem. A reign pf law, in contrast to the tyranny of power can be achieved only through separating appropriately the several powers of government. If the law makers should also be the constant administrators and dispensers of law and justice, then, the people would be left without a remedy in case of injustice since no appeal can lie under the fiat against such a supremacy. And, in this age-old search of political philosophers for the secret of ~ound government, combined with individual liberty, it wa~ :t"fontes9meu who first saw the light. He was the first amonir the pobtic:al ph1losophers who saw the necessity of separating judicial power from the executive and legislative branches of ~,uvernment. 12-L126SCI/76 Q H i ~ ~ .. ":_ • A . B c D E F G H 518 SUPREME COURT REPORTS [1976] 2 S.C.R. Montcsqu ieu was the first to conceive of the thr<:e functions of govern ment as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of government involved a cer tain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As Holdsworth says, Montesquieu con vinced the world that he had discovered a new constitutional principle which was universally valid. The doctr~ne of separation of govern mental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of government into three branches does not imply, as its critices would have us think, three water-tight compartments. Thus, legislative impeachment of executive officers or judges, executive veto over legislation, judicial review of administrative or legislative actio.ns are treated as partial exceptions which need explanation(l). There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates, or, if the power of judging be not separated from the legislative and executive powers. Jefferson said : All powers of government-legislative, executive and judicial-result in the legislative body. The concentration of these powers in the same hands is precisely the definition of despotic govern It will be no alleviation that these powers will be exercised by ment. a plurality @f hands and not by a single person. One hundred and seventy three despots would surely be as oppressive as onee). And, Montesquieu's own words would show that where the whole power of one department is exercised by the same hands which possess whole power of another department, the fundamental principles of a In Federalist No. 47, James Madison free constitution are subverted. suggests that Montesquieu's doctrine did not mean that separate departments might have "no partial agency in or no control over the acts of each other". His meaning was, according to Madison, no more than that one department should not possess the whole power of another. · The Judiciary said the Federalist, is beyond comparison the weakest It has no influence over either of the three departments of power. the sword or the purse; no directio).l either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. Of the three powers Montesquieu said, the judiciary is in some mea sure next to nothing. If he realised the relative weakness of the (1) see generally : "The Doctrine of Separation of Powers and its present-day significance" by T. Vanderbilt. (2) see Jefferson : Works : 3 : 223. ' " - -- J. ) ,. SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 519 judiciary at the time he wrote, it is evidence of his vision that he appreciated the supreme importa.nce of its independence. There is no liberty, he said, if th~ judicial power be not separated from the legisla ·tive and executive. But this doctrine which is directed against the concentration of these ,po~ers in the same hand has no application as such when the question rl.s .whether an amending body ca,n exercise judicial power. In other words, the doctrine is directed against the concentration of these sove reign powers in one or other organ of government. It was not designed to limit the power of a co.nstituent body. Whereas in the United States of America and in Australia, judicial power is vested exclusively in courts, there is no such exclusive vesting of judicial power in the Supreme Court of India and the courts -subordinate to it. And if the amending body exercised judicial power in adjudging the validity of the election, it cannot be said that by that act, it has damaged a basic structure of the Constitution embodied in the doctrine of separation of powers. Even: so, the question will remain whether it could exercise judicial power without passing a law enabling it to do so. As I said, the exercise of iudicial power can result only in a judgment or sentence. The constituent power, no doubt, is all embracing, comprising within its ambit the judicial, executive and legis lative powers. But if the constituent power is a power to irame or .amend a constitution, it can be exercised only by making laws of a particular kind. The possession of pO\ver is distinct from its exercise(1). The pos5ession of legislative power by the amending body would not entitle it to pass an ordinary law, unless the Constitution is first amended by passing a constitutional law authorizing it to do so. In the same way, the possession of judicial power by the amending body would not warrant the exercise of .the power, unless a constitutional is passed by the amending body enabling it to do so. Until that is done, its potential judicial power would not become actual. Nobody can deny that by passing a law within its competence, pariiament can vest judicial power in any authority for deciding a dispute or vest a ,part of that power in itself for resolving a controversy, as there is no .exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of powers which is directed against the concen tration of the whole or substantial part of the judicial power fogislature or the executive would rtot be a bar to the vesting of such :a power in itself. But, until a law is passed enabling it to do so, its potential judicial power would not become actual. (1) see Jacques Maritain : "Man and State", pp. 101·102; also the judgment .of Hidayatullah J. in Golaknath v. Punjab, [19671 2 S-C.R. 762. A B c D E F G H .. . - /( 520 SUPREME COURT REPORTS [1976] 2 S.C.R. A B c D E F G H Lord Coke objected to the exercise of judicial power by J amcs I for pragmatic reasons. Much of what Lord Coke said(!) can be applied to parliament when it seeks to exercise that power in its cons tituent capacity. A sovereign in any system of civilized jurisprudence is not like an oriental despot who oan do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers ai1d could exercise any one of them by a firman has no relevance when we are considering how a pro-sovereign-the holder of the amending power-in a country governed by a constitution should function. Such a sovereign can express 'himself' only by passing a particular kind of law; and not through sporadic acts. 'He' cannot pick and choose cases according to his whim and dispose them of by ad_ministering 'cadi-justice'; nor can the amending body, as already noticed, pass an ordinary law, as Article 368 speaks of the constituent power of amending by way of addition, variation or repeal, any provision of the Constitution in accordance with the procedure laid down in that Article. An ordi nary law can be passed by it only after amending the provisions of the Constitution authorizing it to do so. If the basic postulate that a sovereign can act only by enacting laws is correct, theln that is a limitation upon his power to do any thing he likes. If I may re-phrase the classical statement of Sir Owen Dixon : the law that a sovereign can act only by law is supreme but as to what may be done by a; law so made, the sovereign is supreme over that law( 2 ). Of course, this is subject to the theory of basic structure. In other words, even though a sovereign can act only by making law, the law he so makes may vest the authority to exercise judicial power in himself; without such law he cannot exercise judicial power. (1) On Sunday morning, November 10, 1607, there was a remarkable interview in Whitehall between Sir Edward Coke, Chief Justice of the Common Pleas, and James I. We have only Coke's account of the interview and not the King·s. but there is no reason lei doubt its essential authenticity. The q_uestion between them was whether the King, in his own person might take what causes he pleased from the determination of the judges and determine them himself. This is what Coke says happened: "Then the King said that he thought the law was founded upon reason and that he and others had reason as well as the Judges; to which it was answered by me, that true it was that God had endowed His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the Jaws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires Jong study and experience before that a man can attain to the cognisance of it; and that the law was the golden metwand and measure to try the causes of the sub jects· and which protected His Majesty in safety and peace : with which the King was 'greatly offended, and said, that then he should be under the Jaw, which was treason to affirm, as he said : to which I said that Bracton saith, quad Rex non debet esse sub-homine sed sub Deo et lege." It would be hard to find a single paragraph in which more of the essence of English constitutional law and history could be found. The King ought not to be under a man, non debet esse sub homi,1e, but under God and the !aw, sed sub Deo et lege. (see R.F.V. Heuston : Essays in Constitutional Law, second edition, pp, 32-33). (2). see "Law and the Ccnstituticn", 50 I.aw Quarterly Rev., 590, 604. 1 - >. -<'- .ii. 1 t ..I • ,• ' ~· ~ ) - ~ 'SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 521 law but the Constitution, namely, The :result of the discussion ca111 be summed up as follows : Our Constitution, by Article 329 (b) visualizes the resolution of a~ elec ,tion dispute on the basis of a petition presented to such authority ~nd 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 canllot be resolved except by judicial process, namely, by ascertain ing the facts relating to the election and ·applying the pre-existing 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 passing of .a judgment or se'11tence. The amending body though ;possessed of judicial power had no competence to exercise it, unless If, however, the it passed a constitutional law enabling it to do so. decision of the amending body to hold the election of the appellant valid w.as the result of the exercise of an 'irresponsible despotic dis cretion' governed solely by what it deemed political necessity or ex pediency, the~1, like a bill of attainder, it was a legislative judgment disposing_ o'f a particular election dispute and not the enactment of a law resulting in an amendment of the Constitution. And, even the latter process· (the exercise of despotic discretion) could be re garded as an amendme'at of the Constitution, the amendment would damage or destroy an essential feature of democracy as established resolution of election dis ·pute by an authority by the exercise of judicial power by ascertaining the •adjudicative facts and applying the relevant law for determining the real represe>11tative of the people. The decision of the amending body cannot be regarded as an exercise in constituent 1egislative validation of an election for these reasons : firstly, there · can be no legislative validation of an electid11 when there 'is dispute between the parties as regards the adjudicative facts; the amendin~ body cannot gather these facts by employing le.gislative process; they can be gathered only by judicial process. Secondly, the amending body must change the law retrospectively so as to make the election valid, if the election was re111dered 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 ordi nary law whether with or without retrospective effect. Clause ( 4) expressly excluded the operation of all laws relating to election pe1i ·tion to the election in question. Therefore, the election was held to be valid not by changing the law which rendered it invalid. Thirdly, the ·cases cited for the appellant are cases relating to legislative validation of _invalid elections or removal of disqualification with retrospective effect Being cases of legislative validatio\1, or removal of disqualifica tions by legislature, they are 1,1ot liable to be tested on the basis of the theory of basic structure, which, I think, is applicable only constitutional amendments. Fourthly, there was no controversy iri ·those cases with regard to adjudicative facts : if there was controversy with regard to these facts, it is very doubtful whether there could be legislative validation of an election by changing the law alone without ascertaining the adjudicative facts by judicial process. A B c D E F G H 522 SUPREME COURT REPORTS [1976] 2 S.C.R. A The•n ·I come to the argument of counsel that equality is a basic- structure of the Constitution and that that has been damaged or des· troyed by clause ( 4) . B c D E F The Solicitor General submitted that the majority in Bharati's case (supra) did not hold that Article 14 pertains to the basic struc ture, that apart from Article 14, there is no principle of equality is not a which is a basic structure of the Constitution and that chameleon-like concept which cha1ages its colour with the nature of the subject matter to which it is applied. The majority in Bharati' s case did not hold that Article 14 per tains to the basic structure of the Constitution. The majority upheld the validity of the first part of Article 31 C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that Article would. not destroy or damage the basic struc ture. The o'11ly logical basis for supporting the validity of Article 31A, 31B and the first part of 31C is that Article 14 is not a basic structure. Counsel for the respondent, however, submitted that even. if Arti cle 14 does not_pertain to basic structure, equality is an essential fea ture of democracy and rule of law and that clause ( 4), by dispensing with the application of the law relating to election petition and matters connected therewith to the appellant and another has made an unrea sonable distinction between persons similarly situated and has thereby damaged or destroyed that essential feature, and therefore, the clause is bad. He said that in so far as laws are general instructions to act or refrain from acting in certain ways in specified circumstances en· joi"1ed upon persons of a specified kind, they enjoin uniform behaviour in identical cases; that to fall under a law is pro-tanto to be assimi lated to a single pattern; and that a plea for rule of law in this sense is, in essence, a plea for life in accordance with laws as opposed to other standards, namely, the ad hoc dispensation from its operation. He argued that if some persons, for ino stated reason, and in accor' dance with no rule, obtain exemption from the operation of law, while persons who are sufficiently similar in relevant characteristics governed by it, that is manifestly unfair, for, to allow some persons to do that which is forbidden to all others is irrational. G H Democracy proceeds on two basic assuU?-ptions : ( 1) popular sovereignty Fn the sense that the country should be governed by the representatives of the people; that all power came from them; at their pleasure and under their watchful supervision it must be held; and (2) that there should be equality among the citizens in arrivi'ng at the decisions affecting them(i1). f - • Today, it is impossible to conceive of a democratic form of government without equality of citizens. republican It is true that in (l) see Robert ·A. Dahl: "A Preface to Democratic Theory'', pp. 4-33; and Bryce: Modern Democracies, Vol. II, p. 9. • - SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) . 523 the republics of Athens a>,1d Rome there were slaves who were regard ed as chattels. And. even in the United States of America, there was a republic even before the Negroes were enfranchised. Our Consti tution envisages the establishment of a democractic republican form of government based on adult suffrage. Equality is a multi-coloured concept incapable of a single defi'ni It is a notion of many shades and connotations. The pream tion. ble of the Constitution guarantees and of opportunity. They are nebulous concepts. And I am ~1ot sure whe ther they can provide a solid foundation to rear a basic structure. I think the types of equality which our democratic republic guarantees are all subsumed under specific articles of the Constitution like Arti cles 14, 15, 16, 17, 25, etc., and there is no other principle of equality which is an essential feature of our democratic policy. . equality of status In the opinio•a of some of the judges constituting the majority in Bharati's case (supra). Rule of Law is a basic structure of Constitution apart from democracy. ' readiiy The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of exclud 'Rule of law' is an expres ing arbitrary official action in a'.1y sphere. sion to give reality to something which is not t:xpressible. That is why Sir Ivor Jennings S'aid that it is an unruly horse. Rule of law is based upon the liberty of the individual and has as its object, the harmonizing of the opposing notions o.f i11dividual liberty and public order. The notion of justice maintains the balance between the two; and justice has a variable content. Dicey's formu1'ation of the rule of law, namely, "the absolute supremacy or predominance of regular law, as opposed to the influe111ce of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government" has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. A.s Culp Davis said, where the law ends, discretion begins and. the exercise of discre- . tion may mean either beneficence or tyran'11y, either justice or injustice, either reasonableness or arbitrariness. There has b~e~ no government or legal system in world history which did not involve both rules and It is impossible to find a government of laws alone and discretion. not of men in the sense of eliminating all discretionary powers. All Jerome Frank governments are governments of laws and of men. has soaid : A. B c D E F G "This much we qn surely say : For Aristotle, whom Harrington derived the notion of a government of laws and not of men, that notion was not expressive of hostility to what today we call administrative discretion. Nor did it have such a meaning for Harrington."(') Another definition of rule of law has been given by Friedrich A. "Constitution of Hayek in his books : "Road to Serfdom" and H {1) see "If Men were Angels" (1942), p. 203. 524 SUPREME COURT REPORTS (1976] 2 S.C.R. A Liberty". Committee in England('') : It is much the same as that propounded by the Franks · ,. ~ • ' > " .... 'The rule of law stands for the view that decisions should be made by the application of !mown principles or In general such decisions will be predictable, and the laws. citizen will know where he is. On the other hand there is what is arbitrary. A decision may be made without princi ple, without any rules. It is therefore unpredictable, the anti thesis of a decision taken in accordance with the rule of law." This Court said in Jaisinghani v. Union of lndia( 2 ) that the rule of law from one point of view means that decisions should .be made by the application of known principles and rules, and in general, such decisions should be predictable and the citizen should know where he is. This exposition of the rule of law is a,lly the aspiration for an idE"al and it is not based on any down-to-earth analysis of practical problems with which a modern government is confronted. world of action, this ideal cannot be worked out and that is the rea son why this exposition has been rejected by all practical men. In If it is cO'atrary to the rule of law that discretionary authority should be given to government departments or public offkcrs, there is no rule. of law in any modern state. A judge who passes a sentence has no other guid•ance except a statute which says that the person may be sentenced - to imprisonment for a term which may extend to, say, a period of te'a years. He must exercise considerable discretion. The High Courts and the Supreme Court overrule their precedents. What previously announced rules guide them in laying down the new precedents ? A court of law decides a case of first im It is pre pression; no statute governs, no precedent is applicable. cisely because a judge cannot find a previously announced rule that he becomes a legislator to a limited extent. All these would show that it is impossible to enunciate the rule of law which has at its basis that no decision can be made unless there is a certain rule to govern the decision (3 ). Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule of law and that concept implies equality be fore the law or equal subjection of all dasses to the ordinary law. But, if rule of law is to be a basic structure of the_ Constitution, one must find specific provis,ions in the Constitution embodyrng the coasti-_ tuent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial CO'acept having its habitate 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 I assume that (1957) p. 6. (I) Report (2) [1967] 2 S.C.R. 703, at 718. (3) see "Discretionary Justice" by K.C. Davis. B c D E F G H SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 525 .rule of law is a basic structure, it sems to me that the meaning and the constitue'11t elements of the concept must be gathered the enacting provisions of the Constitution. The equality aspect of the rule of 1'aw and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the equal protection clause of the 14th Amend ment to the American Federal Constitution('). In State of Bengal v. Anwar Ali Sarkar( 2 ), Patanj•ali Sastri, C.J. observed that the first :Part of the Article which has been adopted from the Irish Constitu tion, is a declaratio11 of equality of the civil rights of all persons within judges the territories of India and thus enshrines what American regard as the "basic principle of republicanism" ( 3 ) and that the second part which is a corollary of the first is based on the last clause of the :first section of the Fourteenth Amendment of the_ American Consti tution. So, the concept of equality which is basic to rule of law a>nd that which is regarded as the most fundamental postulate of repub-- 1icanism are both embodied in -Article 14. )najority in Bharati's case (supra), Article 14 does not pertain basic structure of the Constitution, which is th_e other principle of equality incorporated in the Constituti<)l,1 which can be a basic struc ture of the Constitution or an essential feature of democracy or rule of law ? However, it is unnecessary to pursue this aspect of the ques tion as I have already given reasons to show clause { 4) to be bad. If, according to I think clause ( 4) is bad for the reasons which I have already summarised. Clauses (1) to (3) of Article 329-A are severable but I expres_s no opinion on their validity as it is not necessary for deciding this case. Then the question is, whether the Representation of the People '(Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, are liable to be challenged for the reason tlrat they damage or destroy a basic structure of the Constitution. Cou1,1sel for the respon dent submitted that, if, by a constitutional amendment, the basic struc ture of the Constitution cannot be destroyed or_ damaged, it would be illogical to assume that an ordinary law passed under a power conferred by that instrument can do so and si1,1ce these Acts damage the concept of free and fair election, the Acts were bad. ·" 'I ~· ' • ~ ..... .. , .. I ~: ' I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the 'limitation on power of amendment under Article 368 read into it by the majority in Bharati' s case because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do not find any such inhibition so far as the power of parliament or state legislatrues to pass laws is concerned. Articles 245 and 246 give the power and also provide (I) Basheshar Nath v. The Commissioner of lwome Ta<, [l959] I S.CR. 528, at 550-551. (2) [1952] S.CR. 284 at 293. (3) cf. Ward v, Flood, 17 Am. Rep. 405. A B c D E F G a A B c D £ F G H 526 SUPREME COURT REPORTS [1976] 2 S.C.R. thought 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, thougll a poart of the Constitution, is neither a source of p_ower nor a limitation upon that power. The preamble sets out the ideological aspirations of the peo ple. The essential features of the gre"!t co~1cepts set out in the pre amble are delineated in the various provisions of the Constitution. It is these specific provisions in the body· of the C_onstitution which determine the type of democracy which the founders of that instru social ment established; the quality and nature of justice, political, liberty· and economic which was their desideratum, the content of ·of expre$sion which document, the scope-of equality of status and of opportunity which they enshrined in it. These specific provisions en'~cted in the Consti tution alone can determine the basic structure of the Constitution as est'ablished. These specific provisions, either separately or in combi nation determi1ae the content of the great concepts set out in the pre amble. It is impossible to spin out any concrete concept of basic. structure out of the gos~mer concepts set out in the preamble. The specific provisions of the Constitution are the stu©' from which the basic structure has to be woven. The argument of counsel for the respondent proceeded on the assumption that there are certain ·norms for free and fair election in an ideal democracy and the law laid down by parliamen.t or state legislatures must be tested on those norms and, if found wanting, must be struck down. The »1orms of election set out by parliament or state legislatures tested in the light of the pro visions of the Constitution or necessary implications therefrom consti tute the law of the land. That l'aw cannot be subject to any other test, like the test of free and fair elecion in a'11 ideal cjemocracy. entrenched I do not think that an ordinary law can 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 expres sion; or equality of status and opportunity, or some invisible radiatidit from them. ". __ (No) political terms have been so subjected to con tradictory definitions as 'democracy' and 'democratic' since it has become fashionable and profitable for every and any state to style itself in this way. The Soviet Union and com munist states of Eastern Europe, -the Chinese Peoplo's Republic, North Korea and North Vietnam all call them· selves democracies. So does Nasser's Egypt; so does Gene. ral Stoessner's Paraguay; so did Sukarno's Indonesia. Yet, if anything is clear, it is that these states do not all meet the same definition of democracy" (11) • - i1• 'T ~: _ 1: for _ they Definitions are ~he last analysis image of democracy. The quest10n is not only what does the word 'democracy' mean but also what is the thi11g. And, when we try to answer this latter query, we discover important, for our responsible (1) See Finer : Compartive Government (1970) PP 62--63, .... • -,, ... " -• • , .J • SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 527 '°' a normative and persuasive that the thing does not correspond to the word. Sci, although 'de mocracy' has a precise literal meaning, that does not really help us to understand what •an: actual democracy is. In the real world, R. A. Dahl bas pointed out that, democracies are 'polyarchies'. The term _}> . democracy has Iiot only a descriptive or denotative function but also functio•,1. Therefore, the problem of definin<> democracy is two-fold, requiring both a descriptive •and pres- • criptiv; function. To avoid pitfalls, it is necessary to keep in mind • two things-first, that a firm distinction should be made between the is and the ought of democracy, and second, that the prescriptive and the ~descriptive definitions of democracy must not be confused, because the "democratic ideal does not define the democratic reality •and vice versa; the real democracy is not and cannot be the same as the ideal one (1·) . .,.., One cannot test the validity of an ordi1aary law with reference to the essential elements of an ideal democmcy. It can be tested only with reference to the principles of democracy actually incorporated in the Constitution. - - - Nor can it be tested on the touchstone of justice. The modern pilate asks : What is justice? aad stays not for an . answer. To Hans Kelsen, justice is an irrational ideal, and regarded from the point of rational cognition, he thinks there are only interests and hence conflict of interest. Their solution, according to him, can be brought , about by aa Order that satisfies one interest at the expense of the other or seeks to achieve a compromise betwen opposing interests ( 2 ). Mr. Allen has said that the concept of social justice is vague and in" definite ( 3 ). Liberty of thought, expression, belief, faith and worship are not absolute concepts. They are emotive words. They mean different things to different people. Equality of status and of oppor tunity are concepts laden with emotional overtones. In their abso luteness they are incapable of actu•al realisation. The enacting pro visions in the body of the Constitution alone give concrete shape to these ideas and it is on the nasis of these provisions that the validity of ordinary law should be tested. ,._ t the topic of elections. Article 326 provides that elections to The democracy which our Constitution-makers established is based o'a the representation of the people in the law-making organs. The method by which this 'representation has to be effectuated has been provided in the Constitution. Part XV of the Constitution deals with House of the people and to the legislative assemblies of States should be on the basis of adult suffrage. Articles 327 and 328 provide for ~i making of laws with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either ·-. House of the Legislature of a State including the preparation of elec 'oral rolls, the dclimiration of constituencies and all other matters necessary for securing the due constitution of such House or ~ouse~. The validity of any law rel(!ting to the delimitation of cons tttuenc1es or the allotment of seats to the constituencies, made or (1) see "Democratic Theory" by Giovanni Sartori, Chapter J. (2) "General Theory of Law and State" (1946) p. 13. ~ (3) "Aspects of Justice'', p. 31. G H 528 SUPREME COURT REPORTS [1976] 2 s.c.R. purporting to be made under Article 327 or Article 328 shall not be called in question in any court [see Article 329(a)]. A • This would indicate that 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 found that the task of writing t!1'e legislatiau cin the subject has been committed to parliament and state legislatures by the Constitution, is '"- • it comp~tent for a court to test its validity on the basis of some vague norms of free and fair election? I think not. As I said, like other laws made by parliament. or state legislatures, the laws made under Articles 327 and 328 ·are liable to be tested by Part III of the Consti tutiO!J or any other provisio'ii of the Constitution; but it is difficult to see how these laws could be challenged on the ground that they do not conform to some ideal notions of free and fair election to be evolv- ed by the court from out of airy nothing. ,. "' The doctrine of the 'spirit' of the Constitution iJ? 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 repubiicanism supposed to pervade the Constitution but not eipressed in words. • When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legisla ture, we cannot declare a limitation under the notiaa of having dis covered some id.ea! norms,: of free and fair election. · Cooley has observed that courts are not at liberty to declare statutes void because they appear to the minds of the judges to violate fundamental principles. of republican government, unless it shall be found that those principles are phced beya.id legislative encroachment ~ by the Constitution. The principles of democratic republican govern- " ment are not a set of inf!exil;ile rules; and unless they are specifically incorporated in the Constitution, no law can be declared bad merely because the Court thinks that it is opposed to some implicatio'.1 drawn from the concept('). · · ' Counsel for the respondent relied upon the observations of Sikri, C.J. at p. 216, Shelat and Grover JJ. at p. 292, Hegde and Mukher- _iea, JJ. at p. 355 and Reddy, J. at p. 556 Bharati's case (supra) in support of his contention that when these ~ Acts were put in the Ninth Schedule by the constitutional amendment, their provisions became vulnerable to attack if they or any one of them damaged or destroyed the · basic features of democracy or repub--,_ licanism. judrments Sikri, C.J. has said that the Constitution 29th Amendment Act, 1971, is ineffective to protect the impuQned Acts there if thev abro 'f!Iis would not >how that tlie gate or take away fu\1damental rights. (1) see Constitutional L.irnitatioas1 8th ed., Vol. l, pp. 349-352. B ·C 'F ·G n SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 529 In other words, if by learned Chief Justice countenanced any challenge to an Act on the ground that the basic structure of the Constitution has been damaged or destroyed by its provisions not constituted by fundamental rights abrogated or taken away. taking away or abridging the fundamental rights, the basic structure of 'I Constitution is damaged or destroyed, then, according to th(f learned Chief Justice, the legislation would be vulnerable on that score, even ' though it is put in the Ninth Schedule by a constitutional amendment. , But it would not follow that an Act so put can be challenged for a reaso>a not resulting from the taking away or abrogation of the funda ~ mental right. To put it differently, 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 ca!n not be attacked, if I may say so, for a collateral reason, namely, that the provisions of the Act have destroyed or damaged some other basic structure, say, for instance, democracy or separation of powers. Shelat and Grover, JJ. have s_:,iid in their judgment that the 29th Amendment is valid, but the question whether the Acts included ju the Ninth Schedule by that Amenclme'11t or any provision of Acts abrogates any of the basic elements of th13 con:;titutional struc ture or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration. Similar ob- servations have been made by Hegde and Mukherjea, JJ. and by Reddy, J. Khanna, J. only said that the 29th Amel11dment was valid. It • It is rather strange that an Act which is put in the Ninth Schedule with a view to obtain immunity from attack on the ground that the provisions thereof violate the fundamental rights should suddenly be- come vulnerable on the score that they damage or destroy a basic structure of the Constitution res1,11ti1ag not from the takfug away or abridgement of the fundamental rights but for some other reason. There is no support from the majority in Bharati's case (supra) for the proposition advanced by counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a constitutional amendment putting ata Act in the • Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other ~ basic structure. And, in principle, I see no reaso111 for accepting the correctness of the proposition. " f' Yltf The Constitution-makers eschewed to incorporate the 'due process' clause in that instrument apprehending that the vague contours of that concept will make the court a third chamber. The concept of a basic structure as brooding omniprese1ace in the sky apart from the specific provisions of the Constitution constituting it is too vague and indefi nite to provide a yardstick to determine the validity of an orqinary Jaw. c E F G H A 'B D E 530 SUPREME COURT REPORTS (1976] 2 S.C.R. So if it be assumed that these election Jaws amendment Acts, even after they were put in the Ninth Schedule by cmstit:itional amendment remained open to attack for contravention, if any, of the fundamen tal rights, these Acts would not be open to attack on the ground that their provisions destroyed or damaged an essential feature of demo- cracy, namely, free and fair electio~1. The Acts remain part of the r ordinary raw of the land. They did not attain the status of CO'.iIBti- ' in the Ninth Schedule. tutional law merely because they were put The utmost that can be said is, as I indicated, tlrat even after putting • them in the Ninth Schedule, their provisions would be open to chal- lenge O'a the ground that they took away or abrogated all or any of" the fundamental rights and therefore damaged or destroyed a basic' structure if the fundamental rights or right taken away or abrogated constitute or constitutes a basic structure. ,, "'I r ,. I Counsel for the respondent then contended that retrospective ope ration has been given to the provisions of these Acts and that that would destroy or damage an essential feature of democracy viz., free and fair elections. The argument was that if one set of laws existed when an election was held and the result announced, you can'11ot thereafter substitute another set of laws and say that those laws ·must be deemed to have been in operaticm at the time when the election was. held and the result announced, as that would lead to inequality, injustice and unfairness. Retrospective operation of law in the field of election has been upheld by this Court [see Kanta Kathuria v. Manak Chand (supra)]. Retrospective operation of any law would C'ause hardship ta some persons or other. This is inevitable; but that is no reason to deny to the legislature the power to enact retrospective law. fa the case of a law which has retrospective effect, the theory is that the law was ac tually in operation in the past and if the provisions of the Acts are general in their operation, there can be no challenge on the ground of disctimination or unfairness merely because of their In other words, if an Act cannot be challeJJged retrospective effect. on the ground that its provisions are discriminatory or unreasonable \ • -1 if it is prospective in operation, those provisions cannot be attacked on these groui,1ds merely because the provisiqns were given retros- -pective effect, unless there are special circumstances. I see no such special circumstances here. • • f I therefore hold that these Acts are not liable to be challenged ·G on any of the grounds argued by counsel. Counsel for the respondent _submitted that the session of parlia ment- in which the Election Laws Amendment Act, 1975 and the 39th ./ Amendment to the Constitution were passed was not properly 1:on vened and therefore the amendments were inv.alid. :H The argument was that a number of members of the two Houses of Parliament were illegally detained by executive orders before the summo•ning of the two Houses and that was made possible by the President-the authority to summon the two Houses--making an SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 531 order under Article 359 of the Constitution on 27-6-1975, which precluded·thesc members from moving the :ourt and obtaining release In effect, the con from illegal detention and attending the session. tention ot counsel was that the authority to summon parliament effec tually prevented by its order made under Article 359, those members who were illegally demined from attending the session and, as the composition of the session was unconstitutional, any measure passed in the session would be bad. Reliance was placed by counsel upon the decision in A. Nambiar v. Chief Secretary(') proposition. in support of The questioia which fell for consideration in that case was whether, when a member of parliament was convicted for a criminal offence and was undergoing a sentence in pursl!'ance .thereof, he has an un conditional right to attend a session of parliament. This Court held that he had no privilege which obliged the court to release him from custody in order to enable him to attend the session. This decision has no relevance to the point in controversy here. A B c - In England, a member of parliament who is convicted of a crimi- nal ailence and is undergoi•ag sentence in pursuance to his conviction has no right or privilege to be releiised from custody for attending D parliament. The very same principle will apply in the case of a de tention under an emergency regulation(") . In England, it was taket,1 as settled that parliamentary roll is con clusive of the question _!hat a bill has been passed by both houses of parliament and has received royal assent and no court can look be- hind the roll as such an inquiry would be an interference with privilege of parliament. Lord Campbell said in Edinburgh & Dalkeith Ry. v. Wauchope(3) : the E "I think it right. to say a word or two upon the point that has been raised. with regard to an Act of Parliament being held inoperative by a court of iustice because the forms prescribed by the two Houses to be observed in the passing of a Bill have not been ex-actly followed .... I can not but express my surprise that such a notion should have prevailed. There is no foU'adation for it. All that a i:ourt of justice can do is t~ look to the Parliamentary Roll; If from that it should . appear that a Bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced ]n Parliament, nor into what was ~one previous to its introduc tio•.1, or what pas~t_d in P~rliament during its progress in its various stages through both Houses." It has since been said that Parliamentary Roll is not conclusive, that when the jurisdiction of a c;ourt is invoked, it has power to determine whether everything necessary has been done for the production of a (1) [1966] 2 S.C.R. 406. (2) see May's Parliamentary Practice, 18th ed., p. 103. (3) [l 842] 8 Cl. & F. 710 at p. 724. F G H " " • - "' , .. I\ " ~ A B c D E F G H 532 SUPREME COURT REPORTS [ 197 6] 2 S.C,R. valid s~atute, that rule of law requires that the court should determine legal questions raised before it and if its jurisdiction is properly in voked, it has to •a>aswer the question whether the document is a statute duly enacted by a parliament. The view as propounded has been summarized as follows : " ( 1 ) Sovereignty is a legal concept : the rules which composition and identify the sovereign and prescribe its functions are logically prior to it. (2) There is a distinction between rules which govern, on the one hand, (a) the compositio'a, and (b) the pro 'Cedure, and on the other hand (c) the area of power, of a sovereign legislature. ( 3) The courts have jurisdiction to question the validity of an alleged Act of Parliament on grounds 2(a) and 2(b), but not on ground 2( c) "(1). , The reasons for the view are these : When the purported sovereign is anyone but a single actual person, the designation of him must in· elude the statement of rules for the ascertainment of his will, ll.Ild these rules, since their observance is a condition of the validity of his legislation, are rules of law logically prior to him( 2 ). The extract~on of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which can not be accomplished without arbitrary rules. It is therefore an in complete statement to. say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when aCting in a certain way prescribed by law. At least some rudimentary ·man ner and form is demanded of it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible(3). Sir Frederick Pollock has said that supreme legal power is in one sense limited by the rules which prescribe how it shall be exercised. Even if no constitutional rule places a limit or boundary to what can be done by sovereign legal authority, the organs which are to exercise it must be delimited and defined by rules ( 4 ) • · So, the questions to be asked are : how is parliament composed ? How does parliament express its will ? The rules which identify the sovereign are as important as the institution so identified. If this is so, it is open to the court to see whether a parliament has been properly summoned in oi:der to decide the question whether a measure passed by it answers the description of a statute or a'n Act and that parliamentary roll, if such a exists, is not conclusive. (!) see R.F.V. Heuston : Essays in Constitutional Law, Second edition, pp. 6· 7. (2) see Latham : "The Law and the Commonwealth'' (O.U.P. 1949), p. 523 (3) see Latham : "What is an Act of Parliament?" (1939) King's Counsel, p. 152. (4) see Geoffrey Marshall : Constitutional Theory, pp. 40-41. .. • ./ SMT. INDIRA GANDHI v. RAJ ·NARAIN (Mathew~ J.) 533 As to Parliamenrary Roll, Heuston has said : "The 'Parliamentary Roll', whatever exactly it may have been, disappeared in England a century ago, though even good authors sometimes write as if it still exists. Since 1849 there· has been no 'Roll', simply two prints of the Bill on durable vellum by Her Majesty's St,ationery Office, which are signed by the Clerk of the Parliaments and regarded as the final official copies. Ove is preserved in the Public Record Office and one in the House of Lords( 1). the library of · A B Article 122( 1) provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. · So, ev~n if there is any irregularity in the C procedure in the passing of the statute, it is not open to a court to qt1estion its validity. But this is distinct from the question whether · the two Houses have been properly summoned and the composition . of the Session was proper. The Solicitor General said that if a member is excluded from parti cipating in the proceedings of a House, that is a matter-· concerning) the privilege of that House as the grievance is one of exclusion from the proceedings within the walls cif the House. And, in regard to the right to be exercised within the walls of the House, the House itself is the judge. He referred to May's Parliamentary Practice (18th in this connection. ed. pp. 82-83) and also to Bradlaugh v. Gossett( 2 He further said that if an outside agency illegally prevents a mem- ber from participating in the proceedings of the Hou.se, the House has power to secure his presence in the House and cited May's Parliamen tary Practice (18th ed. pp. 92-95) to support the prqposition. ) These passages throw no light on the question in issue here. Ever since the decision of Holt C.J. in Ashby v. White( 3 ) it has been settled that privilege is part of the common law and cannot affect rights to be exercised outside or indep_endently of the House. Regu larity of internal proceedings is one thing; the constitutional rights of the subject are another; and it is the latter which are in issue in a case where the question is whether the document is a statute('1). Article 85 ( 1) provides that the President _shall from time to time summon each House of Parliament to meet at such time and place as he thrnks fit, but six months shall not intervene between its last sitting in one session and the date appointed for i!_s first sitting in the next session. The detention of these 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 (l) Essays in Constitutional Law, p. 18 (2nd ed.). (2) 12 Q.B.D. 271, 285-286. (3) [1703] 14 St. Tr. 695. (4) see Heuston : Essays in Constitutional Law, 2nd ed., p. 22. 13-Ll26SCf/76 [) ·E F G H • - _ .. .. ,. -· A B c D E F G H 534 / SUPREME COURT REPORTS (1976] 2 5.C.R. illegal, could prevent the Houses of Parliament from meeting as en joined by Article 85. If a statutory authority passes an illegal order .of detention and thus prevents a member of parliament from attending the House, how can the proceedings of parliament become illegal for that reason? It is the privilege of parliament to secure the atten dance of persons illegally detained. But what would happen if the privilege is not exercised by parliament ? I do not think that the proceedings of parliament would become illegal for that reason. The suspension of the remedy for the enforcement of fundamental rights by the order of the President under Article 359 is dependent If a situ upon a valid proclamation of emergency under Article 352. ation arose which authorized the President to issue a proclamation under Article 352, he could also suspend, under Article 359, the re medy to move the court to enforce the fundamental rights. These are the constitutional functions of the President and unless it is established that the proclamation made by the President under Article 352 or the suspension under Article 359 of the remedy for enforcement of fun damental rights is unconstitutional, it is impossible to hold that the President has, in any way, illegally prevented the release of these mem bers from the. supposed illegal detention so as to make a session of parliament unconstitutional, in consequence of the inability of those members to attend the session. performing his constitutional function under these articles has not authorized 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 amend ments were passed was illegally convened. The challenge to the vali dity of the amendments on this score must be overruled. In other words, the President, Counsel for the respondent submitted that it is immaterial when a candidate committed a corrupt practice-whether it was before or after he became a candidate-and that an election would be set aside even if a person committed the corrupt practice before he became a candidate. Section 79 (b) of the Representation of the People Act, 1951, defined the word 'candidate' as follows: " 'candidate' moons a person who has been or claims t@ have been duly nominated as a candidate at any election, and any such person shall be deemed to have been candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate". Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the present definition in s. 79 (b) which reads : " 'candidate' means a person who has been or claims to have been duly nominated as a candidate at an election." • ,G • -4 I I SMT. INDIRA GANDHI v. RAJ NARAIN (Mathew, J.) 535 In support of the proposition that an election can be set aside A even if a persop has committed corrupt practice of bribery before he became a candidate, cou_nsel cited Halsbury's Laws of England,_ 3rd ed., Volume 14, pages 222 (paragraph 386) and 218 (paragraph 380). These p•aragraphs state that in order to constitute the offence of bribery, it does not matter how long before an electiori a bribe is B given, provided that t_he bribe is operative at the time of the ele"ction, and that, time is material only when considering the question of evi dence. that a C Counsel further said that under s. 100 of the Representation of the People Act, 1951, an election is liable to be set aside if it is found under clause (b) of sub-section ( 1) of that section returned candidate has committed corrupt practice; that ex hypothesi, a returned candidate cannot commit a corrupt practice, and there- it is not the description of a person as a returned candi- fore, date that is material. He argued that if in s. 100 ( 1) (b) word 'returned candidate' is used not with the idea of indicating that a person should have committed corrupt practice after he became a returned candidate, there is no reason to think that the word 'candidate' D in s. 123(7) has been used to show that the corrupt practice therein mentioned should have been committed after a person has become a 'candidate' in order that the election of the candidate might be set aside. There can be no doubt that s. 100(1) (b), when it speaks of commission of corrupt practice by a returned candidate, it can: only E mean commission of co~{,upt practice by a candidate before he be came a_ returned candidate. Any other reading of the sub-section would be absurd. But there i~ no such compulsion to read the word 'candidate' in s. 123 (7) in the smne manner. It is the context that gives colour to a word. A word is not cry.stal clear. Section 79 of the Act indicates that the definitions therein have to be read subject to the context. F ,,_ t The legislature must fix some point of time before which a per- son cannot be a :candidate' in an election, and, a wide latitude must In Union of India and be given to the legislature in fixing that point. Another, etc. v. Mis. Parameswaran Match Works, etc.(1) this Court observed: - "The choice of a date as a basis for classification can not always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless is shown the circumstances. to be capricious or whimsical _ in When it is seen that a line or point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted reasonable unless we can say that it is very wide of the (!) [1975] (2) S.C.R. 573 at 579. G H A B c D E F G H 536 SUPREME COURT REPORTS [1976] 2 ·s.c.R. mark. See Louisville Gas Co. v. Alabama Power Co.(1) per Justice Holmes.'; The learned Chief Justice has, in his judgment, referred to the relevant English sratutes and the decisions of the English Courts bearing on this point and has pointed out the difference between the English Law and the Indian Law. I do not consider it necessary to cover the same grou~1d. I agree w_ith his conclusion on the point. I would therefore hold that even if it be assumed that the fuiding of the High Court that the appellant obtained or procured the assis t'ance of Shri Yashpal Kapur during the period from January 7 24, 1971, is correct, the appellant shall nqt be deemed to have com mitted corrupt practice under s. 123(7) of the Representation of the People Act, 1951, as she became a candidate only on February 1, 1971. The learned Chief Justice has also dealt with the contentid11 urged by counsel for respondent that clause 8 (b) of the Election Laws Amendment Act, 1975 suffers from the vice of excessive delegation I agree with his r_easoning for repelling the same. and is arbitrary. ' There can be no _dispute that if the Election Laws Amendment Act, 1975, is valid, the appeal has to be allowed. I would, therefore, set aside the findings of the High Court against the appellant and allow the appeal without any order as to costs. In the cross appeal, the· only question raised was about the correctness of the finding of the High Court that the appellant has not exceeded the prescribed limit of election expense. For the J. in his judgment, I hold that the finding of the High Court on this issue was In this view, I have ifiO occasion to reach the other ql!estions correct. I would dismiss the cross appeal without any order as to argued. costs. · reasons given by Khanna, BEG, J.-There are two Election Appeals Nos. 887 and 909 of 1975, before us under Section 116A of the Representation of the People Act of 1951 (hereinafter referred to as 'the Act'). They are directed against decisions on different issues contained in the same judgment of a learned Judge of the Allahabad High Court allowing an election petition filed by Shri Raj Narain (hereinafter referred to as the 'Election-Petitioner'), a defeated candidate at the election held in February, 1971, for the membership of the Lok Sabha or the House of the People, against Shrimati Indira Nehru Gandhi, the Prime Minister of India (hereinafter referred to as 'the Original Res pondent'). The election-petitioner is the respondent in Appeal No. 887 of 1975 filed by the original respondent. He is the appellant in Appeal No. 909 of 1975 where the original respondent is the con testing respondent. Before the election case, instituted on 24-4-1971, could be decided by the Trial Court, an explanation was added to Section 77 ( 1) of the. Act. It had som~ . bearing on qu~stions . relating to the expenses mcurred on the ongmal respondent s election, sought (1) 240 U.S. 30, at 32. ·. ' f SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 537 the election-petitioner, but, on findings of fact A to be raised by recorded by the Trial Court, it became immaterial for the merits of the case and would continue to be that so long as the election-peti tioner is unable to dislodge the Trial Court's findings on election expenses. Other amendments were made by the Election Laws (Amendment) Act No. 40 of 1975, (hereinafter referred to as the 'Act of 1975'), notified on 6-8-1975, after the decision of the case by the learned Judge of the Allahabad High Court on 12-6-1975 and B after the filing of the appeals before us. These amendments deal directly with -several questions decided by the Allahabad High Court which were pending consideration before this Court. Finally, came the Constitution (Thirty-Ninth) Amendment Act of 1975, (herein after referred· to as the '39th Amendment'), gazetted on 10-8-1975, just before the commencement of the hearing of the appeals by this Court. C It was submitted by the learned. Counsel for the original res- · pondent, in his· opening address, that Section 4 of the 39th Amend ment, adding clause ( 4) to Article 329 A of the Constitution, meant that Parliament itself, acting in its constituent capacity,. had taken the case in hand and had, after applying its own standards, decided it in favour of the original respondent so that the jurisdiction of this Court to go into the merits of the case was ousted by clause ( 4) ~ read with clauses (5) and (6), sought to be added to Article 329A of the Constitiition. It was submitted by him that each one of the amendments of the. Act was aimed at removing genuine uncertainties or doubts about what the law was so that it may be brought into the line with what it had been previously understood to be as declared in any case, with what Parliament, correctly by this Court, or, exercising its unquestionable law making powers, thought that it should be. The constantly recurring and vehemently pressed theme, of the arguments of the learned Counsel for the election-petitioner was that the context and the contents of the Acts of 1974 and 1975, and, after that, . of Section 4 of the 39th Amendment, clearly indicated that the whole object of th~ Acts of 1974 and 1975 and of the · Constitutional amendment was an oblique one : to deprive the elec tion-petitioner of the remedies he had under the law against an elec tion vitiated by corrupt practices, and of the benefits of a decision of the High Court in his favour by taking away its grounds and then the jurisdiction of Courts, which existed at the time of the 39th Amendment, to deal with the case so that this case may not, in any It was repea event, tedly suggested by the learned Counsel ,for the election-petitioner, throughout his arguments, that the law making powers had been really abused by a majority in Parliament for the purposes of serving majority party and personal ends which were constitutionally unau It was even alleged that the President of India had also thorised. become a party to the misuse of Constitutional powers by passing an ordinance depriving Courts of jurisdiction to entertain Habeas Corpus petitions so that members of Parliament belonging to opposition par ties, detained under preventive detention laws, may not secure re lease and oppose proposals which became embodied in the 1975 Act terminate in ·favour of the election-petitioner. D E F G H • • .• • ~ "' '. \ 538 SUPREME COURT REPORTS (1976] 2 S.C.R. A B c D E F G H arrd the 39th Amendment. H is when the country is faced with issues of this nature that the constitutionally vital role of the judica ture, as a coordinate and independent organ of a democratic system of governm~nt, comes into prominence and has to be performed with out fear or favour, affection or illwill, as the custodian of constitu- tionality. . In the circumstances indicated above, it seemed to me to be absolutely essential for us to call upon the parties defending or as sailing the 39th Amendment and the Acts of 1974 and 1975, take us, inter alia, into the merits of the cases of the two sides and the findings given by the trying Judge so as to enable us to see how far these findings were justifiable under the law as it stood even before the amendments by the Acts of 1974 and 1975, ( how they were affected by these amendments, and how they were related to the validity of Section 4 of the 39th Amendment. Speaking for my self, I clearly indicated to learned Counsel for the parties that I regard the nature and merits of the case decided to be of crucial importance not only in considering the validity of the 39th Amend ment and of the Acts of 1974 and 1975, but also in the wider terests of justice which are bound to be served by the vindication of the case of the party which should, on merits, win. Elementary considerations of justice required that the party with a better case should not be deprived of an opportunity of justifying its position, on facts and law touching thei merits of the case, in the highest Court of the land, · particularly' when the original respondent, who hap pens to be the Prime Minister of this country, was accused of cor rupt practices to secure her election and then of abuse of constitutional power and position to shield them. The high office of the original respondent, far from disabling this Court from investigating such al legations, ought to provide a good ground for this Court to go into the merits of the case if we are not really deprived of our jurisdic tion to do that by Section 4 of the 39th Amendment. This follows from the Rule of law, as I understand it, embodied in our Constitu tion. National interests cannot, or, at least, should not, I believe, suffer if _justice and right, as determined by the highest Court in the country, prevail. Citizens of our country take considerable pride in being able to challenge before superior Courts even an exercise of constituent po wer, resting on the combined strength and authority of Parliament and the State legislatures. This Court, when properly called upon by the humblest citizen, in a proceeding before it, to test the Con stitutional validity of either an ordinary statute or of a Constitutional amendment, has to do so by applying the criteria of basic constitutional purpose and constitutionally prescribed procedure. The assumption underlying the theory of judicial review of all law making, including fundamental law making is interpreters of (See : what has been described by some political philosophers Bosanquet's "Philosophical Theory of the State" Chap. V, p. 96- 115) as the "Real Will" of the people, embodied in their Constitu tion and assumed to . be more lasting and iust and rational and Jess liable to err than their "General Will", reflected by the opinions ol! the majorities in Parliament and the State Legislatures for the time being, can discover for the people the not always easily perceived that Courts, acting as • « • • ~ I I • j , .. SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 539 any kind of purposes of their Constitution. The Courts thus act as agents and mouthpieees of the "Real Will" of the People themselves. Although, judges, in discharging their onerous constitutional duties, cannot af ford to ignore the limitations of the judicial technique and their own possibly greater liability to err than legislators could on socio-econo mic issues and matters of either social philosophy, or practical policy, or political opinion only, yet, they cannot, without violating oaths of office, fail to elucidate and uphold a basic constitutional principle or norm unless compelled by the law of the Constitution to abstain from doing so. One of these basic principles seems to me to be that, just as Courts are not constitutionally competent to legislate under the guise of interpretation, so also neither our Par the purported exercise liament nor any State Legislature, law-making power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any Court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case. This power must at least be first constitutionally taken away from the Court concerned and vested in another authority before it can be lawfully exercised by that other authority. It is not a necessary or even a natural incident of a "Constituent power". As Hans Kelsen in his "General Theory of Law and the State", (See : points out, p. 143 ), while creation and annulment of all general norms, whether basic or not so basic, their inter pretation and application to findings reached, after a correct ascey tainment of facts involved in an individual case, by employing the is really a judicial function. Neither of the three judicial technique, constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries o~ its own constitutionally assigned sphere or orbit of authority into that of the other. This is the logical and natural meaning of the principle of Supremacy of the Constitution. :is essentially a legislative function, • \ • Issues raised before us relating to the validity of the 39th Amend" ment and the Acts of 1974 and 1975 were: What are the Consti tutional purposes and ambit of the "Constituent power" found in in any way, exceed Article 368 of our Constitution? Were they, ed by the constituent authorities in making the 39th Amendment in an unauthorised manner, or, for objects which, however, laudable, were outside the scope of Article 368? Was there any procedural irregularity in the composition of Parliament which could enable this Court to hold that there was a basic defect in the enactment of either the 1975 Act or of the 39th Amendment ? Whether provisions of the Acts of 1974 and 1975 are immune from attack even on the ground that they resulted in a departure from the "basic structure" of our Constitution as explained by this Court in His Holiness Kesava nanda Bharati Sripadagalavaru v. State of Kerala( 1), by having been included in the 9th Schedule of our Constitution, which does protect them from a challenge on the ground of any contravention of Part III guaranteeing fundamental rights to citizens and other persons, or, in other words, were the limits of the basic structure only ope rative against Constitutional amendments or apply to ordinary (1) [1973] (1) Suppl. S.C.R.J).1. A c D E F G H • • • ... • • • A c D E F G "H 540 SUPREME COURT REPORTS [1976] 2 ·s.C.R. · statutes as well? Are any of the provisions of the Acts of 1974 and 1975 void for departures from or damage to any part of· the "basic structure"· of our Constitution or for any other excess or misuse of law making powers ? . We do not, when such a case comes up before us, concern our selves with the · validity. of provisions other than those which affect the case before us .. Nor do we consider the objects of any provi- . siOil, · ill vacuo, divorced from the facts of the cas.e· to be· decided. Therefore, ·parties had to and 'did address us on _the broad features of the findings given by the learned Trial Judge and the nature of the evidence given to support them so that we may be able to decide, the original respondent's inter alia, whether any "validation" of election, which was the evident purpose of clause ( 4) of Article 329, sought to be added by Section 4 of the 39th Amendment, was at all necessary. If that election was not really void ·and· had been wrongly held, by the Trial Court to be vitiated, it did not need to be validated ·at;:in:. In'. that· event, a purported validation would. be an exercise in futility before this Court had decided these appeals. · Could it not · be said that the intended validation was premature inasmuch as it proceeded on a basically erroneous premise that the original respon dent's election was invalid when the question of its validity was sub judice in this Court? How could such a premise be assumed to be correct before this Court had gone into merits and decided appeals pending before it ? Such an inquiry is not irrelevant if the very nature and purpose of the exercise of a power are put in issue by both sides. If the existence of the judgment of the Allahabad High. Court . created the impression that it must be assumed to be correct even before this Court had pronounced upon the . correctness of the judg ment, the stay order given by this Court should have · removed it. The legal effect of that stay order was that the Trial ·court's order, to use the language of Section 116B (3) of the Act, ·"shall be deem- It did not matter if the. stay order, . ed never to have taken effect". out. of deference for existing precedents, had been fiamed in the form· · of a "conditioned" stay, that is to say, a stay in law and effect ·with certain conditions annexed. · It was not a '_'conditional" stay. · Indeed, having regard to the nature of the 0 •order the operation of which was to be stayed,-·there could be no "conditional" stay here. As . .. to the· legal· effect of such a stay order, there is no doubt in my mind that, considering the clear words of Section 116A ( 4) of the Act, it deprived the order of the High Court of any operative force what soever dnring the pendency of these appeals. There could be really no binding precedent in discretionary matters depending on the facts and circumstances of· each case. The operation of the judgment of the ·Trial Conrt and the consequential orders are stayed only on In the case be "sufficient cause" shown on the facts of that case. fore US, the sufficient cause seems to me to be apparent from a bare perusal of th<; judgment of the Trial Court. . As I have pointed out .below; 'the judgment under· appeal contains "glaringl_y erroneous ·con clusions, reached by ignoring· what has been repeatedly laid down in e!ection cases by this Court, even if one \Vere to ·assume, for the sake of argument, that all the findings of fact recorded by • • •• .. SMT. INDIRA GANDHI v, RAJ NARAIN (Beg, J.) 541 Trial Court, conclusions rest, were correct. including some very questionable ones, on which its A ' C In a case where the bonafides of legislation and even of a Consti tutional. amendment, is questioned on the ground of a suggested fright- fuln~ss m the facts of the case which Parliament and the ra~ifying State Legislatures ai:e to be supposed, if we are to accept the suggestion, to hav~ b~en actmg i_n concert to prevent this Court from examining on B me!1ts! It was, I th~nk, the duty of Counsel making any such suggestion to mv1te our attent10n to any fact not fully disclosed or discussed in the judgment under appeal atleast when he was asked, as I repeatedly asked him in the course of his arguments extending over a period of about fifteen days out of a total period of hearing of the case for thirty- two days, how the Trial Court's conclusions on the two matters, form- ing the subject matter of appeal No. 887 of 1975 of the original respon- dent, could possibly be justified. However, I have also satisfied myself, by going through the whole evidence on re.cord on these two matters, which I shall presently deal with, that learned Counsel for the election petitioner could not possibly usefully add anything to the replies he actually gave on the questions put to him on these matters and to the discussion of the whole evidence on these questions by the Trial Court. I have taken pains to clarify this position as the learned Counsel for D the election petitioner, at the end of arguments of both sides, extending over thirty two days of actual hearing stated that he bad argued on the assumption that we will be concerned only with the validity of the 39th Amendment and the validity and correct interpretation of the Acts of I think that it was made clear to him that we will 1974 and 1975. have to enter into the1 merits if that was necessary, as I think it is, for judging whether amendments in law were either necessary or justified. Learned Counsel for the election,petitioner was not prevented dealing with any question, whether of fact or law, which he may have wanted to raise. Learned Counsel for both sides had fully argued at least the election petitioner's appeal No. 909 of 1975 on facts1 and law. 'TI1ey had taken us sufficiently into facts and findings- involved in the original respondent's appeal No. 887 of 1975 to justify our dealing with all questions necessary to decide this appeal on merits also. Indeed, it is not necessary for us to go beyond findings of fact recorded .by the learned Judge, as distinct from conclusions based upon them which are questions of Jaw, to demonstrate the very palpable errors committed by the learned Judge on the two questions which are the sub_ject matter of appeal No. 887 of 1975. F E the G Shrimati Indira Nehru Gandhi was elected to the House of People from the Rae Bareli constituency in Uttar Pradesh by an over whelming majority of 1,11,80q votes against Sh~i Raj ~.arain. As is not unusual, the defeated candidate filed an election petition under the Act making all kinds of allegations, including some quite extra".agant ones which formed the subject matter of the first set of eleven issues fram'ed on 19-8-1971. Thereafter, three additional issues were framed on 27-4-1973 when the question whether an amendment of the petition, H sought after the period of limitation for filing a petition to chall~nge the election had expired, should be permitted, had been finally decided by this Court in favour of Shri Raj Narain. A B c D E F G H 542 SUPREME COURT REPORTS (1976] 2 ·s.C,R. The issues framed give an idea of the cases set up on behalf of the two sides. They were : ISSUES "1. Whether respondent No. 1 obtained and procured the assis tance of. Yashp_al Kapur in furtherance of the prospects of her election while he was still a Gazetted Officer in the ser vice of Government of India. If so, from what date ? •

2. Whether at the instance of respondent No. 1 members of the Armed Forces of the Union arranged Air Force Planes and helicopters for her, flown by members of the Armed Forces, to enable her to address election meetings on 1-2-1971 and 25-2-1971, & if so, whether this c_onstituted a corrupt prac tice under section 123 (7) of the Representation of the People Act ? . ijl

3. Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the District Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of U.P. Government arranged for rostrums, loud speakers and barricades to be set up and for members of the Police Force to be posted in connection with her election tour on 1-2-1971 and 25-2-1971; and, if so, whether amounts to a corrupt practice under Section 123 (7) of the Representation of the People Act ?

4. Whether quilts, blankets, dhoties and 'liquor were distributed by agents and workers of respondent No. 1 with the consent of her election agent Yashpal Kapur, at the places and on the dates mentioned in Schedule A of the petition in order to induce electors to vote for her ?

5. Whether the particulars given in paragraph 10 and Schedule A of the petition are too vague and general to afford a basis for allegations of bribery under Section 123 ( 1) of Representation of the People Act ?

6. Whether by using the symbol cow and calf, which had been allotted to her party by the Election Commis~ion in J:ier election campaign the respondent No. 1 was gmlty of makmg an appeal to a religious symbol and committed a corr~pt practice as defined in section 123(3) of the Representation of the People Act ?

7. Whether on the dates1 fixed for the poll voters were conveyed to the polling stations free of. charge on vehicles hired ~nd procured for the purpose by respondent No. l's election agent Yashpal Kapur, or other P.e~sons with his consent, as detailed in Schedu!e B to the petition ?

8. Whether the particulars given in paragraph 12 and schebdu~e B of the petition are too vague and gener'.11 to form a ~s1s for allegations regarding a corrupt practice under Section 123(5) of the Representation of the People Act? + ,. I , SMT. INDIRA GANDHI v. RAJ NARAIN (Beg, J.) 5 43

9. Whether respondent No. 1 and her election agent Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by Section 77 of the Representation of the People Act, read with rule 90, as detailed in para 13 of the petition ? A Hl. Whether the petitioner had made a security deposit in accor dance with the rules of the High Court as required by Section B 117 of the Representation of the People Act ?

11. To what relief, if any, is the petitioner entitled? ADDITIONAL ISSUES

1. Whether respondent No. 1, obtained and procured the assis tance of Y ashpal Kapur in furtherance of the prospects of her election while he was still a Gazetted Officer in the ser If so, from what date ? vice of the Government of India.

2. Whether respondent No. 1 held herself out as a candidate from any date prior to 1-2-1971 and if so, from what date? 3. Whether Yashpal Kapur continued to be in the service of Government of India from and after 14-1-1971 or till which date ?" The High Court trying the case had, in the course of a lengthy jµdg ment, rejected the election petitioner's case on issues Nos. 2, 4, 6, 7 and 9 of the first set of issues, after minutely and meticulously scrutinizing every material allegation of the election-petitioner and the evidence given in support of it on each of these issues. Out of these, the election- petitioner, in his cross appeal No. 909 of 1975, has questioned the find- ings of th;e High Court only on issues Nos. 2, 4, 6, 7 and 9 set out Issues Nos. 5 & 8 and 10, decided in favour of the election~ above. petitioner, were technical and are immaterial now. It will be noticed that the additional issue No: 1, due to some error or oversight, is an exact and unnecessary repetition of the initial issue No. 1. Additional issues numbered 2 & 3 are connected with and subsidiaries of the initi- ally framed issues numbered 1 and 3. c 0 E F The learned Trial Judge had accepted the election-petitioner's case on the material issues numbered 1 and 3 of the initially framed issues, and on the overlapping and subsidiary additional issues 1, 2 and 3. He was of opinion that Shri Yashpal Kapur, a Central Government servant and a Gazetted Officer of the rank of an Under Secretary, de- G puted to serve in the Prime Minister's Secretariat as an Officer on Special Duty, had held his post until 25-1-1971, when his resignation, tendered on 13-1-1971, was accepted by the President of India with effect fram 14-1-1971, by means of a notification published on 6-2-1971. Consequently, the learned Judge set aside the election of the original respondent after ·holding that she was guilty of a "corrupt practice", as defined by Section 123(7) of the Act, on each of two H grounds : firstly, that she must be deemed to have obtained the help of Shri Yashpal Kapur, in the furtherance of her election, before he had ceased to be a gazetted officer in Government service, and after • ) \ \ 544 SUPREME COURT REPORTS [1976] 2 ·s.c.R. A B C D original respondent had first held herself out, on 29-12-1970, as a candidate at the forthcoming election from the Rae Bareli constituency by answering inthe negative a question put to her at a Press Conference in New Delhi inquiring whether she had decided to change her consti- tuency from Rae Bareli in U.P. to Gurgaon in Haryana; and, secondly, that she must be deemed to have obtained the help of officials of the State of U.P. who got rostrums constructed for her election speeches and electricity provided and arrangements made for loudspeaker!\. The learned Judge declared her to be disqualified under Section 8A of the Act from holding her office for a period of six years from the date of his order dated 12-6-1976. I deliberately employ the word "deemed" to describe the nature of the findings of the Trial Judge on both those questions because the learned Judge had himself indicated that they were inferences based entirely on circumstantial and not on any direct evidence whatsoever of any instructions issued either by the original respondent or by her election agent during following 29-12-1970. Election Appeal No. 887 of 1975 was filed against deci sions on these two questions and consequential orders of the learned Trial Judge. the period The law, as found in the Act of 1951 did not, unlike the English Act bf 1949, make a distinction between corrupt practices and illegal practices. Section 123 (7), as it has stood unamended, enumerates, as the last of the 7 classes of corrupt practice, as follows : · It • \ ~ "S. 123(7) The obtaining or procuri~g or abe!ting or attempting to obtain or JJrocure by a candidate or his agent or, by any other person.with the consent of a ca~d!date or his election agent, any assistance other than the g1vmg of vote for the furtherance of the prospects of that candidate's elec tion, from any person in the service of the Government and belonging to any of the followmg classes, namely : - (a) gazetted officers; ( b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; ( e) excise officers; (f) (g) xxx Explanation.-( 1) In this sec~ion the expression . 'agent' includes an election agent, a pollmg agent and . any person who is held to have acted as an agent .in connection with the election with the consent of the candidate. E F G (2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of .the prospects of. a candidate's election if he acts as an election agent of candidate". It is clear that "the obtaining or procu.ring or abettin~ or attemptin.g · or rocure" had to take place either by a candidate. or by ):us to obtamb p b d "with the consent of the candidate or his election agent or y some o y H •. ' I SMT. INDIRA GANDHI v. RAJ NARAIN (Beg, J.) 545 agent". Until the candidate had appointed an election agent, the action A of any other person could not constitute him automatically an agent so that he may, by doing something voluntarily succeed in makini:; the candidate vicariously liable for his own actions whether he was or was not a gazetted officer at the time when he committed the act complained of. The question of obtaining assistance through "an agent" or "other person with the consent of a candidate or his election agent" could only arise where such a case of obtaining assistance indirectly through others B is set up but not otherwise, On issue No. 1, the case set up in paragraph 5 of the petition is : "Smt. Indira Nehru Gandhi obtained and procured the assistance of the said Shr.i Yashpal Kapur for the furtherance of prospects of her election from the constituency aforesaid inasmuch as the said Shri Yashpal Kapur was a Gazetted Officer in the service of Government of India when his assis- . tance was o~tained. and procured ..... The said Shri Yashpal Kapur on the direction of Smt. Indira Nehru Gandhi orga_niz ed the electioneering work for her in the constituency during the period commencing from 27-12-1970 ...... " It is a case of liability resulting from an alleged "direction" given by Smt. Indira Nehru Gandhi herself to Shri Kapur. No case of procure ment of assistance of Shri Kapur through a. third person is set up al though the word "procured" is mechanically lifted from Section 123 (7) and used. On issue No. 3, the case set up in para 9 of the petition is that both Smt. Indira Gandhi and her election agent, Shri Kapur, "obtained and procured" the assistance of Govt. officers, but no direc Issue No. 1 tions or orders given by anyone are mentioned there. shows that the case which was put in issue and went on trial was whether the original respondent had herself issued some direction to issue here was Shri Kapur. Is~ue No. 3 shows that what was whether the Government officers mentioned there rendered the assis-' tance indicated there "at the ·instance" of the original respondent or her election agent. The discussion of evidence and findings of learned Judge, particularly on issue No. 1, show that the learned Judge had almost made out a new case for the election petitioner and accept ed it. This was, on issue No. 1, whether Shri Kapur had done some acts in circumstances which justify the inference that he was constituted a de facto agent of_ the Prime Minister even before he was appointed her election agent on 1-2-1971, and, on issue No. 3, whether sending round of certain tour programmes with the approval of the Prime Minister, in the background of certain long standing instructions of the Comptroller & Auditor General, read with letters sent by the Govt. of India, as long ago as 12-1-1959, and .19-11-1969, amounted to "impli ed" directions by the Prime Minister or her election agent to the State Government to provide the facilities the Govt. officials gave. Now, whenever a case of a liability by "implication", where there is such a species of liability in Jaw, comparable to a criminal liability, is to be fastened upon an individual, the prosecutor is to be expected, as a part of an elementary duty to give fair notice and. a fair Op))?rtunity to meet what the individual has really to be made liable for, either because of c D E G R • - '1 .... .. • ~ \ \ -1 ; 54 6 SUPREME COURT REPORTS [1976] 2 S.C.R. A B c D E F G H some act or omission of the individual concerned, or, even more so, for t_hat _of an_ ag~~t or another person for which there mav be some sort of v~canous ha~1hty, from facts showing consent or agency, to give full ~art_1~~lars of c1~cumstances from which such implications or vicarious habiht1es may anse. I do not find that this was done here . . The law must lay down a duty to _Prevent,. by taking some steps which are ~ot ta~en, before a person 1s held hable for an omission. And, t~ere 1s a difference between omission to prevent the doing of somethmg and actual consent to the doing of it. l do not find in the peti~ion, any case of a liability from omissions to do something' set up, obviously becau~e.the law does not i~pose upon the candidate the duty to prevent the givmg of voluntary assistance by others whether officials or not. Nor is there anywhere in the petition a case of procurement by consenting to aid obtained through others. It has to be remembered that, on the langaage of Section 123(7), a liability is not created by merely not rejecting voluntarily given aid. The candidate may not often be aware of the voluntarily given assistance so as to be able to reject it. A case of consent which can be legally set up is only one of consenting to active obtaining or procurement by an agent or by some other person who becomes, for the purposes of the specific aid given and consented to, ordinarily prior to obtaining it, as good as an agent employed by the candidate. On the terms of Section 123 (7) the following three types of cases of actual obtaining of assistance, as distinguished from abetment or at tempting to obtain it, can be legally set up either exclusively, or, alte1~ natively, against a candidate : firstly, a direct obtaining of it by the act of the candidate himself; secondly, an indirect or vicarious procurement of it by the acts of a duly constituted agent; and, thirdly, an indirect or vicarious procurement of it by the acts of a person who, though not a duly constituted agent, becomes constructively an agent, for the purpose of some particular aid obtained, because it was assented candidate at a time which must, ordinarily, be before the aid is given, so that the person through whom assistance is obtained is a constructive agent for this particular aid at the time when it is given. The term procurement should, strictly speaking, apply only in the last ffi'.O types of cases. A reference to Section 100(1) (b) further emphasises the position that a corrupt practice for wh_ich th~ Hi~ Court is to declar_c an election void must have been comil1!tted either by a returned candi date or his election agent or by any other person with t~e consent of ~he returned candidate or his election agent". A case fallmg under Sectian 100(1) (d) (ii) of "a corrupt practi~e co~itted in,,t~e interes~s of a candidate by an agent other than his ~lectlo~ ag~nt 1s ~ery different and postulates : firstly, a corrupt practice which 1s committed only _by an agent; and, secondly, the existence of such an agent. A case falhn,g under Section 100 (1) ( d) requires also proof of the further fact t_hat the result of the election was materially affected by the corm pt practice. to by As I read the petition, I find on~y the fu~t of the three types OE cases mentioned above set up exclusively on issue No. 1 because theft: are no particulars there which could apply to . the other two t}'.Pes, of cases. Obviously, the case set up was not of a corrupt practice oy • - • f' I SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 547 some act of a person to which the candidate became a party by merely A giving consent in which case the circumstances from which the consent It was a case of a direction was to be inferred had to be indicated. given by the Prime Minister herself to Shri Kapur who, it had to be presumed for the purposes of such a case, would not have given the aid if the direction or order was not there. This deliberately given "direc tion" had to be proved on the case set up. On issue No. 3, the petition mentions only what was obtained, that is to say, the aid of particular B officers and the form it took; but, what caused that aid to be given or the means adopted to get it were not set up there. I think these distin ctions should have been borne in mind. I shall indicate below how the learned Judge, in dealing with a case of the first type only falling under Section 100(1) (b) of the Act, found in issue No. 1, mixed up facts which could, strictly speaking, be relevant only in considering a case of one of tbe other two types. And, in deciding issue No. 3, what really C and quite naturally flowed from and was the well understood appurte- nant of the office of a Prime Minister, and, indeed, absolutely necessary for the due protection of the life and freedom of movement of holder of that high office, was mistaken by the learned Judgl'. to be the result of some kind of assumed solicitation for aid. What the learned Judge entirely missed was that it is the act of solicitation for the aid of the officials mentioned in Section 123 (7), whether successful or not, D and not the mere fact that certain advantages flow quite naturally and conventionally from the occupation of an office, without any solicita- tion, or the mere fact that some assistance is voluntarily given by some- one to an election campaign which is penalised by the provis-ion. • • ) .. , The definition given above in Section 123 (7) meant, on an ordi- nary and natural interpretation of words used, that the corrupt practice defined there could not be committed by any person before there was a "candidate" for an election. Hence, it became necessary to examine the definition of a "candidate" found in Section 79 (b) which laid down : "79. In this part and in parts VII and VIII, unless the context otherwise requires,- ** ** ** (b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candi date as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate;" E F G Section 123, defining corrupt practices, is found in Part VII of the Act. Therefore, the definition of candigate in Section 79, as it origi nally stood, was sought to be applied by the Trial Court to determine whether the original respondent could have committed a corrupt prac- tice at the time of the alleged commission of it. Before, however, I H deal with that question, it is necessary to examine what "obtaining, or procuring or abetting or attempting" meant in the light of the la.w laid down repeatedly by this Court in cases of alleged corrupt practices. ' 7 ' 548 SUPREME COURT REPORTS (1976] 2 ·s.C.R. A B c The logical consequence of placing a charge of corrupt practice on the same footing as a criminal charge is obligation to interpret the words which define it strictly and narrowly. Indeed, any natural and ordinary interpretation on the words "obtaining or procuring or abetting or . attempting" must carry with it the imperative requirement that candidate concerned or his agent must have intentionally done an act which has the effect contemplated by Section 123(7). In other words, a "mens rea" or a guilty mind as well as an "actus reus" or a wrongful act must concur to prod_uce the result contemplated bv law. So far as election expenses are concerned, it is possible to conceive that even an unintentional result (i.e. expenses "incurred" exceeding the prescribed limit) may be enough so that a duty to prevent this result may be there in law. But, Section 123 (7) requires actual intended acts of "obtain ing" or "procuring" or attempting or abetting. For Section 123 07) results are immaterial. .. In the case before us, the petition contains, as I have indicated above, the necessary averment of a deliberate direction by the original respondent herself, so far as issue No. 1 is concerned, and of "obtain ing" and "procuring" as regards issue No. 3. These are enough to denote the ingredients of a mens rea. But, one will search the intent on evidence in vain for any indication of a mens rea or guilty the part of the original respondent or of her election agent when she had appointed one.. As regards both issues 1 and 3, learned Judge seemed to think that Section 123 (7) creates what is called an "absolute statutory liability", which does not require a mens rea, although, in dealing with issue No. 2, he had himself, after citing the necessary authorities, taken the view that a mens rea was also essential. He had himself, in dealing with issue No. 2, distinguished Dr. Y. S. Parmar v. Hira Singh(1'), a decision with whose ratio deci dendi I have never, with due respect, felt happy in so far as it meant that a charge of corrupt practice under Section 123(7) does not require proof of mens rea. It was decided on the strength of a statu.~ tory presumption. There were other decisions of the Supreme Court under earlier law showing that mere appointment of a Government (See : servant as a polling agent could not be corrupt practice ), Mahendra Kumar v . Satya Dev Pushahri v. Padam Dev & Ors.( 2 . Vidyavati & Ors.( 3 ). Dr. Parmar's case (supra) had necessitated an amendment in clause (2) of Explanation 1 of Section 123(7) of the Act so that a Government servant, by merely acting as a polling agent, could not be "deemed" to have so acted as to further .the _pro~­ pects of a candidate's election. The ~earned Judge had_ re~ted I~ his findings on issue No. 2, on Babu Bhai Vallabh Das Gandhi v. P!lloo Homi Mody( 4 ), and Haji Abdul Wahid v. B. V. Keskar( 5 ). B~t, when he came to issue No. 3, and, the end of h1~ judgment, to issue No. 1, he appears to have overlooked the basic right at ' ' .. .. I (1) A. I. R. 1959 S. C. p. 244. (2) 10 E. L. R. 103 (S. C.) [1954]. (3) 10 E. L. R. 214 (S. C.) (1954]. (4) 36 E. L. R. 108 @ 123-124. (5) 21 E. L. R. 409 @ 432. E F G H \ .. . • , • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 549 requirements of a mens rea and an actus reus, or, in any case, if A. he had these requirements in view, he erred in assuming existed here. 1 think he gravely erred in holding that some "acms reus" of the original respondent lay buried beneath circumstances ·which seem to me to really point in the opposite direction. Sometimes, even if direct evidence is lacking, circumstantial evidence, which in escapably points to a particular conclusion, may be even better. But, where is that evidence here ? out to us . I fail to see it and none was pointed B Let me here quote the exact language used by the Trial Judge himself in giving his findings on the first part (relating to 27-12-1970 to 13-1-1971) of issue No. 1 of the "fiirst set" of issues combined with the issue No. 1 of the additional issues, both issues, for some in explicable reason, being identically worded. The Judge said : learned "Learned Counsel for the respondent then urged even accepting that Shri Yashpal Kapur delivered a speech at Munshiganj on 7th January, 1971 and that he canvassed support for the respondent in that speech, he was not an election agent on that date, and there is no evidence of the fact that he had been instructed to do so by the respondent No. 1. Learned Counsel stressed that, consequently, it should not be held on that basis that the respondent No. 1 obtained or procured the assistance of Shri Yashpal Kapur for the furtherance of her election prospects. l I have given my careful consideration to this argument as well, but I regret my inability to accept the same. As also stated earlier, Shri Yashpal Kapur was occupying a position of trust and confidence with the respondent No. quite a long time. During the period in question he was Officer on Special Duty in the respondent No. l's Secre tariat. In 1967 he had resigned from his post for the sake of respondent No. 1 to be able to do her election work in the constituency. After that was done, he was taken back in the respondent's Secretariat as Officer on Special Duty. Respondent No. 1 held herself out as a candidate on 29th December, 1970. On 5th of January, 1971 Raja Dincsh Singh was sent to the constituency. On 7th of January, 1971 Shri Yashpal Kapur visited Rae Bareli, and on the own admission of respondent No. 1, he did so with previous notice to the respondent No. 1. The subsequent events al~o appear to be material, for, according to Shri Yashpal Kapur, immediately on return from Rae Bareli he held a talk with the respondent No. 1 on 9th or 10th of January, 1971, on 13th January he again resigned from the post anrl the same day set out once again for the constitu~ncy of_ the respondent No. 1. It was again he who was ultimately ap pointed election agent for the respondent No. 1. It may be added that it was not possible to adduce any direct evi- 14-126SCI/16 c I> E F G H A B c D E F G H 550 SUPREME COURT REPORTS [ 197 6] 2 S.C.R. dence on the point whether the respondent No. 1 instruct ed Shri Yashpal Kapur to go to Rae Bareli on 7th Ja11uary, 1971 for any election work. That ca11 be inferred 011ly on I have already the basis of the surrou11di11g circumstances. mentioned those circumstances above and to my mind the only inference that can be drawn on the basis of those cir cumstances is that the respondent No. 1 we11t to Rae Bareli 011 the aforesaid date under instruction of the respondent No. l for doing preliminary Work pertaining to her election. To sum, therefore, it is satisfactorily proved that the res pondent No. 1 during the period ending on 13th January, 1971, obtained/procured the assistance of Shri Yashpa/ Kapur, a Gazetted Officer in the Government of India for the furtherance of her election prospects, inasmuch as Shri Yashpal Kapur was made to go to Rae Bareli 011 7-1-1971 and deliver a speech at Shaheed Mela in Munshiganj can vassing support for her candidature". Now, it is a well settled rule, repeatedly laid down by this Court, that allegations of corrupt practice in the course of an election must be judged by the same standards as a criminal charge. And, no rule firmly of evidence, in judging guilt on a criminal charge, is more rooted than that no charge, resting on circumstancial evidence, could be held to be proved beyond reason,able doubt unless the chain of circumstances is so complete and so connected with the charge that it leaves no other reasonable hypothesis open for the Court to alleged adopt except that the offender had committed the offence (See : e.g. Smt . .Om Prabha Jain v. Charan Das & Anr.)( 1). The learned Judge dealt with evidence on issue No. 1 relating to the activities of Shri Yashpal Kapur by dividing it into three periods ·: Cl) from 27-1:0.1970 to 13-1-1971, when Shri Kapur had not resigned from Government service; (2) from 14-1-1971 to 25-1-1971, the period after Shri Kapur's resignation upto its acceptance by the Presi dent of India evidenced by a notification dated 25-1-197.1 ; (3) from 26-1-1971 to 6-2-1971, the period after the acceptance of Shri Kapur's resignation and upto the date of the publication of it in the official Gazette. The learned Judge considered only the first two periods material as he held the activities in the third period to be above board because Shri Kapur was free to do what he liked in this period. Hence, the fact that the original respondent appointed Shri Kapur her election agent on 1-2-1971 made no difference to the result in the third period. But we will find that a verv !!larino- feature of the findin!!s relating to the first tw~ periods is that the original respondent is held vicarious ly responsible without anything bevond the activities of Shri Yashpal Kapur and his position as an Officer on Special Duty in the Prime Minister'~ Ser:retariat to justifv the inference that he had an express or imolied authorisation on direction from the Prime Minister to do anything in general or in particular on her behalf for her election. (1) A.LR. 1975 S. C. 1417@1426. • • .. \ • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 51 Let us take the first period. What was required to be approved, beyond all reasona!Jle doubt from the evidence on record on this part of the case, was that Shri Yashpal Kapur had been instructed or direct ed by the original respondent to render the help, if any, that he did give by the speech he was alleged to have made at a fair at Shaheed Mela (Martyrs' fair) at Munshiganj in Rae Bareli on 7-1-1971, can vassing support for the original respondent's election-an allegation which Shri Yashpal Kapur had denied in so far as any mention of the original respondent's candidature is concerned. Shri Kapur admitted that he had gone there with Shri Gulzarilal Nanda, a former Minister of the Central Government, but said that he had only, when called upon to do so, paid his tribute to the memory of the martyrs. The learned Judg~ held that the recollection of Shri Yashpal Kapur about what he said at the Shaheed Mela on 7-1-1971 was less reliable than the statement of Shri Vidya Sankar Yadav (P.W. 43), an Advo cate belonging to an opposition- party, supported by his political co worker, Nankau Yadav G'P.W. 28)-a witness who, in his transparent anxiety to appear truthful, went so far as to make the absurd asser tion th'at he had not told anyone, before he appeared in the witness box, that he had attended the Shaheed Mela on 7-1-1971, and who could not remember either the date of his marriage or the dates ofl births of his children but asserted that he had noted 7-1-1971 without even having ever talked on any previous occasion to anyone about this date if he is to be believed-and, by Shri R. K. Dixit (P.W. 31), a joint editor of a newspaper, who claimed to be present on the occasion, and who, while reporting other facts 'll'nd reasons in his newspaper for believing that the original respondent will stand from the Rae Barely co1astituency, had not mentioned what he claimed, in the witness box, to have heard Shri Yashpal Kapur himself say at the Mela. Obviously, both these witnesses, if they were not committing perjury, did not have good memories on their own admissions. But, the learned Judge had believed them quite unhesitatingly although the meeting at Shaheed Mefa, addressed by Shri Yashpal Kapur, had not even been given any prominence in the pleadi1,1gs by being atleast specifically mentioned the petition. ' The learned Judge disbelieved the evidence of the original respon- dent's witness Shri Sarju Prasad (R.W. 12), the fieadmaster of a School, who had denied that he ever accompanied Shri Nankau (P.W . 28) to the Shaheed Mela as claimed by Nankau. The ground for holding that Shri Sarju Prasad must be deposing falsely appears to me to be very unfair both to Shri Sarju Prasad and Shri Gaya Prasad Shukla, a Co1agressman, who was suspected, without the slightest foun dation in evidence, of having induced Shri Sarju Prasad to give perjured evidence simply because Shri Gaya Prasad, who did not even appear as a witness, was a member of the Congress (R) party 'and was once connected with the School in which Shri Sarju Prasad served. The learned Judge said : "It is quite likely that once N ankau had conceded in cross-examination that Sarju Prasad had accompanied him to the Shaheed Mela, pressure was brought to bear on Sarju A B c D E F G H • 552 SUPREME COURT REPORTS (1976] 2 'S.C.R. A 8 Prasad (R.W.12) by Gaya Prasad Shukla in order_ to make him appear as a witness in the case and give evidence to con It is true that in his re tradict the testimony of N ankau. examination Sarju Prasad (RW 12) admitted that on the date O'a which he was examined as a witness -in the case the school w•as being run by the Government under the control of the District Basic Education Officer. However, the associa tion that Gaya Prasad Shukla had with the Pathshala in his capacity as Adhyaksha, and consequently with Sarju Prasad, who was a teacher in that Pathshala, could not have been wiped off overnight merely because the school was taken over by the Government to be run under its own officers." c The reasons given by the learned Judge for holding that it was "abundantly clear" that Shri Ram Pal (R. W. 13), another witness of Smt. Gandhi, was "also not a truthful witness", were : , I ' • D E F G H "Now, since Ramesh Chand Shukla Advocate is a resi dent of the same village where Ram Pal resided, and since he was an important worker for the respondent No. 1 during the election and was also _her Pairokar at some stage, the possi bility of Ram Pal having been pressurised by Shri Ramesh Chand Shukla cannot be excluded. Together with it there is also the fact that Shri Gaya Prasad Shukla, another im portant worker of the respondent No. 1, happened to be the Adhyaksha of the Zila Parishad during the period the wit ness was examined in the case. It is a matter of common knowledge that the Adhyaksha of the Zila Parishad always wields influence in the rural areas. It will not be out of place to add that when it was put to Ram Pal in cross examination as to which party did Sri Ramesh Chand Shukla belong, he pleaded ignorance about it. It cannot be accepted for any moment that even though Shri Shukla re sided in the village in which this witness resided, and even though Shri Shukla was such a prominent worker of Congress party, Ram Pal would not have know abont it." I do not know how, when workers of the Congress party were divided into two camps and had been changing sides, from time time, ignorance of a worker's precise party loyalties meant that Ram Pal was untruthful. If mere possibilities of being "pressurised" or biased were enough to tar a witness as untruthful, it is difficult to see how or why the witnesses of the election petitio1aer, on whom lay the primary burden of proof, could escape similar treatment. V. S. Yadav, was, no doubt, an Advocate. But, he was not i<Ven paying Incometax. He felt free, on a working day in Courts, to go to Mela. He was enthusiastic enough as a member of an opposition party to object, according to himself, to Shri Yashpal Kapur bringing in the candidature of the original respondent even at a meeting which, according to him, consisted mostly of Congress (R) sympathisers. Shri Yashpal Kapur was not so ignorant or inexperienced in election SMT. INDIAA GANDHI v. RAJ NARAIN (Beg, J.) 5 5 3 matters imd could not be assumed,. without any evidence to support the assumption, to be so imprudent as to make a speech when he would servant, this would be know that, as he was still a Government misinterpreted. · . - --- Let us, for the sake of argument, assume that Shri Yashpal Kapur had been over-powered by such a desire to exhibit an excessive zeal, which got the better of his prudence that he, believing that a publicly made gesture of his loyalty w•as needed on this particular occasion, cast all caution to the winds and, while payL1g the tribute he was called upon to pay to the memory of the martyrs, suddenly decided to jump into the electoral fray by making an appeal at the martyrs' mela to support Smt. Indira Gandhi, as- though the speeches of all local leaders who, in addition to Shri Gulzarilal Nanda, a former Minis ter, are said to have spoken there to the same effect, were not enough. What follows ? It is here that we find the weakest link la the misty and fanciful chain of the learned Judge's logic. Where was evidence that, whatever else Shri Yashpal Kapur may or may not have been supposed to do on his visit to Rae Bareli, this particular piece of "frolic," a term used by faw relating to scope of authority, carried the "direction., of Smt. Indira Gandhi herself behind it ? Indeed, there is not only not a jot of evide.ice to suggest that Shri Yashpal Kapur was actually asked by Smt. Gandhi to go to Rae Bareli to do anything for her election on this visit, but. there is ample absolutely unshaken evidence of Shri Yashpal Kapur to the contrary, _supported by evidence of the Prime Minister herself, which the learned .trial Judge had, for some reason entiiely ignored. In a'ny case, it is utterly un thinkable that the Prime Minister herself could have conceivably authorised Shri Kapur to go to Munshiganj and make a public speech, while he was still a. Government servant, to support her candidature. And, if he had no authority from her either to act generally or to do any particular act on her behalf, how could each and every action of Shri Kapur possibly make the Prime Minister legally liable vicariously for it? y • The learned Judge, as is evident, from his summary of evidence and conclusions, relied on circumstantial evidence only. But, in order .. that the circumstances should have a conclusive effect, so as to exclude any reasonable hypothesis except that of quilt, they had to point in o>.ie direction only and in no other. What is the position that emerges from a consideration of the circumstances found and detailed by learned Judge himself '! It was held that Shri Yashpal Kapur was occupying a position of trust and ccJ.1fidence with the original-respon dent for quite a long time. Indeed, his evidence shows that he was so attached to the family of the original respondent and the {'Olitical and national causes its members had represented that he was 1ust the type of person who could, even without the slightest suggestion on the pa_rt of the origi11al respondent, have voluntarily taken npon himself the duty to do whatever he could do in his private capacity to help her return. at the election. Indeed, his private capacity, as· a person attached to the family of the original respondent and to the causes espoused by its members, could very well be considered more important A B c D E F G H A B c D E · 554 SUPREME COURT REPORTS (1976] 2 ·s.C.R. by him than his gove=ent service. And, this is exactly what the findings given by the leamed Judge relating to services rendered by Shri Yashpal Kapur at the previous elections of the original respondent, showing how he had resigned his post on a previous occasion, to help in her election, indicated. In the passage from the Judgment, quoted above, learned Judge draws an filference of a previous instruction, frQJn the Prime Minister to Shri Kapur; to say what he is alleged to have said in a speech, because, inter alia, Shri Kapur met the Prime Minister on his return from Rae Bareli. Again, the necessary inference of a previous intimation by Shri Kapur to the Prime Minister of his intention to visit Rae Bareli, could not be that there was m:iy authority or direction given by the Prime Minister to Shri Kapur to do or to say anything on her behalf. All this would lie in the realm of pure conjecture and sus picion, . It left other possible and more reasonable infer_ences wide open. The learned Judge had himself held, so far as use of rostrums is concerned, that the Prime Minister sheds her persc1ilality, as the holder of her office, and assumes the role of a mere candidate as soon as she ascends a platform to make un election speech. Bnt, w)len the learned Judge deals with the action of Shri Kapur, in making a speech from a platform at a martyrs' mela, because Shri Kapur is called upon to pay his tribute to the martyrs, he holds that not only must the capacity of a Govt. Servant ullshakably stick to hin:i, but that Shri Kapur must have been authorised by the Prime Minister herself knowing, as she did, that he was a Govt. Servant, to go and make a pablic speech· at the Mela and canvass for votes for her. I do not think that we can in dulge in a flight of fancy which could be des::ribed 'as "flamboyant". · F torily without the aid of such officers. Naturally, as The nncontroverted evidence of Shri Kapur which had been ignored by the Trial Jndge was that it was the special business of this witness, . as an officer on Special Duty in the Prime Minister's Secretariat, his own words, "to· deal with the representations received from public and other works of semi-political nature." It is difficult to understand how the occupant of such a difficult and responsible office as tbat of _ .,- the Prime Minister of the numerically largest democracy in the world · can possibly discharge his or her duties towards the public satisfac the Prime G Minister was contemplating standing for electio>n from the Rae Bareli constituency, it would not be outside the scope of the duties of such an· officer to attend especially to the complaints and representations from Rae Bareli. He stated that Shri Gulzarilal Nanda, who was then the Railway Minister, had received some represen!'ations from Rae Bareli. He also said that he bad; from time to time, forwarded some representations to Shri Gulzarilal Nanda, who had asked -him to accompany hin:i to Rae Bareli. Therefore, apparently withoet being asked bY the Prime Minister, bnt, after informing her of his intention to go with Shri Gulzarilal Nanda, the witness had, in conrse of the performance of dnties especially assigned to him since H • ~ \ ~ ~ ., " , 1 SMT. INDIRA (JANDHI v. RAJ NARAIN (Beg, J.) 555 his appointment, visited Rae Bareli in the company of Shri Guizarilal Nanda. This could not be outside the scope of his duties. the evidence of this witness and of Again, without any contradiction from any evidence whatsoever, his.,.'>tatement, unquestioned also in cross examination, was that the Prime Minister did not, at any time, ask him, in his own words, "either directly or indirectly to do anything pertaining to her elec tion". The Prime Minister's replies to interrogatories served upon her show that she had no personal knowledge of what Kapur did It is also at Rae Bareli before he was appointed her election agent. apparent from the Prime Minister herself that, when he expressed his desire on 9th or 10th January, 1971, to the Prime Minister to resign from his post as Ofli cer on Special Duty, she asked him to think over the matter as ;:his would mean that he could not return to his post. He had earlier said that this decision was taken with a view to do work for public in general and the Congress party in particular as he wanted to enter public life. It is clear that the Prime Minister had left the decision entirely to the free will and option of Shri Kapur who had been asked to ponder over it carefully. When Shri Kapur had in formed the Prime Minister again on 13-1-1971 that he had reached his final decision after due consideration, to resign from his post so as to be able to do public work, as he had political ambitions, she had agreed to it and had asked him to see Shri P. N. Haksar, who was In charge of the Prime Minister's Secretariat. He informed Shri P. N. Haksar about this decision on the telephone and then met him an hour later on 13-1-1971 to submit his letter of resignation. Shri Haksar, relying upon Rule 3 of the Govt. of India Transaction of Business Rules, had orally accepted this resignation, as the head of the Prime Minister's Secretariat. He told Shri Kapur that he was a free man. Naturally, the necessary notification, showing that Shri Kapur was relieved of his office with effect from 14-1-1971, was to follow. I\ This was the learned Judge's finding. The statement of Shri Kapur, supported by those of the Prime Minister and Shri P. N. Haksar, had been accepted by the Trial S:ourt as correct so far as te1nder of this resignation and its acceptance, m all the stages, followed by the notification in the Gazette, went. The learned Judge held that the President gave his assent on 25.1.1971. Shri Kapur's letter of .resignation must ha_ve been duly forwarded and was acted upon. Shri Kapur did not work in the Prime Mi1nister's Secretariat after 13;1.1971 and he drew no salary as a Govt. servant after that date. The notifica tion in the Gazette could not, according to rules, take place until ·He signed and completed the Shri Kapur had handed over charge. necessary papers relating to relinquishment of the charge of his office on 13.1.1971, but he put the date 14.1.1971 under his signature on the document evidencing a formal handing over of charge as it was The Trial Court held that the resigna t? take effect from that date. tion of Shri Kapur would be effective from 25-1-1971 notwithstanding the fact that his request to be relieved from office, with effect from A B c D E F .G H A B c D E F G H 556 SUPREME COURT REPORTS [1976] 2 ·s.c;R.

14.1.1971, had been accepted and acted upon immediately by Shri P. N. Haksar as the official head of the Prime Minister's Secretariat. The papers were sent to the Secretariat of the President of India for completion of formalities. The formal Presidential sanction having been obtained, the notification dated 25.1.1971, declaring the resig nation of Shri Kapur to be effective from 14.1.1971, was published on 6.2.1971. On the ·facts stated above, there could be no doubt whatsoever that Shri Kapur was not asked to do anything at all in connection with her election by the Prime Minister herself, but he had decided take interest in it voluntarily as he had some political ambitions; and, therefore, he had asked the Prime Minister to be relieved of his office in her Secretariat with effect from 14-1-1971. It is unfortunate that the learned Judge thought that there was something almost sinister in Shri Kapur taking such interest in the election or in hoping to enter There is not the political life through absolutely legitimate means. slightest reason for· any0«1e who fairly examines the evidence of Shri Kapur, supported by that of the Prime Minister and Shri P. N. Haksar, to doubt the motives or the veracity of Shri Kapur on this point. He In any frankly stated that his ambition was to enter political life. If such assistance case, the motives of Shri Kapur were not on trial. as he may have rendered was entirely voluntary, without any request or solicitation from the Prime Mi1aister, I do not see how, on view of the correct legal position stated above, it made any difference to the result even if Shri Kapur had continued to be a Government servant upto 25.1.1971. the applicable Shri P. N. Haksar was aware of and cited for a resignation by a temporary Government servant, as Shri Kapur was, and stated also the practice followed, in his experience, in such He, presumably thought that the resignation was effective cases. ~rom 14.1.1971. Shri Kapur also acted upon that assumption and The Prime Minister, who could not be expected to in that belief. examine suo moto the question whether Shri P. N. Haksar and Shri Kapur were right in their beliefs about the effectiveness of the resigna tion, assumed that everything was alright. fo any case, there could not possibly, on these facts, be any mens rea on her part. The learned Judge having accepted, on the unimpeachable evidence of the date of notification of 25.1.1971, published in the official Gazette on 6.2.1971, that Shri Kapur must have handed ia his resig nation in a letter of 13.1.1971, it is very difficult to see how one could possibly doubt the correctness of the statement of Shri P. N. Haksar that, as the Head of the Prime Minister's Secretariat, he had accepted the resignation orally and forwarded it on for necessary ac The resignation had take'a place with the consent of the Prime tion. Minister. It is inconceivable, in the circumstances, that Shri P. N. Haksar would not have, as the Head of the Department in which Shri Kapur was working, agreed to relieve him of his duties by telling him that he was a free man, and, thereby, accepted his resignation. He, ' / I SMT. INDIRA GANDHI v. RAJ NA!<AIN (Beg, J.) 557 very honestly, stated that he does not remember whether he wrote 2!11ything on the margin of that letter. He must have made so many indorsements on so many letters and documents that it was expecting the impossible to hold that he must remember what he wrote on every ·one of them. The only other ground given by the learned Judge for doubting the correctness of this version, which completely accords with the natural and ordinary course of official busi•ness, was that the additional written statement, filed a year after the original written It seems to me that statement, mentions this fact for the first time. the learned Judge was carrying his suspicions to excessive lengths. The real question involved was the legal effect of the facts accepted by the learned Judge to be correct. These were : firstly, that such a letter of resignation was handed in on 13-1-1971 by Shri Kapur to Shri Haksar asking to be allowed to resign with effect from 14-1-1971; and, secondly, this very request was accepted by the President of India and incorporated in a notification dated 25-1-1971. • ) The learned Judge had found Shri P. N. Haksar's stateme'ilt, that such an oral acceptance, followed by the necessary notification after wards, was "rather interesting," and, that the resignation could not be effective until 25.1.1971, the date of drafting the notification. But, what the learned Judge completely overlooked was that the 11otifica tion itself made the resignation effective from 14.1.1971, the date from which Shri Kapur hud neither worked in the Prime Minister's Secretariat nor drawn any salary. There was no plea anywhere, and there is no express finding on it, that the President's 1,1otification itself, which made the resignation effective from 14.1.1971, was invalid to the extent that it purported to give any retrospective effect to resigmtion, in the sense that it made it effective from a date prior to its actual acceptance. The fact that it is made effective 14.1.1971 shows that the letter must have reached the President's Secretariat with the request that this should be done. And, i'n the ordinary course of business, the head of the office concerned makes his indorsement on such letters. The learned Judge had relied on Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, which runs as follows "5 (a) The service of a temporary Government servant who is not in quasi-perma•nent service shall be liable termination at any time by notice in writing given either by the Government Servant to the appointing authority, or by the appointing authority to the Government serva!nt. (b) The period of such notice shall be one month, unless otherwise agreed to by the Government •and by the Government servant : Provided that the service of any such Government ser vant may be termraated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances + ' • A B c D E F G H A B c D E F G H 558 SUPREME COURT REPORTS [1976] 2 S.C.R. for the period of the notice or as the case may be, for the period by which such notice falls short of one month or any ·agreed longer period." The learned Judge had referred to Halsbury's Laws of England, Vol. V (Simond's Edn.), p. 61, where it was laid down in a "corporation created by Statute for the discharge of public functions a member may not have an absolute right to resign at will, because the law may cast a duty upon the persons elected to a public office to act in that office in public interest." He also referred to an Ameri can case, Edwards M. Edwards v. United States('), to the effect that only the appointing authority could have accepted the resignation of a1a occupant of a public office, and that, under the special provisions · of the law, the holder of such an office could be· subjected to a penalty for a wrongful refusoal to perform the duties of his ·office. The desire or wish of the holder of the office had to give place to public It is clear that the cases cited could interest in such special cases. have no relevance whatsoever for an interpretation of Rule 5 set out above. The learned Judge had then relied upon Raj Kumar v. Union of lndia(2), where this Court held that "normally, and, in the absence of any law or rule governing the conditions of his service to contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority." In that case, there was a dispute between the Govt. servant and the Union of India on the question whether the Govt. servant concerned could with It was held that he could draw his resignation after it was accepted. It was not a case of an agreement between the parties at all as not. to the date from which the resignation could effectively terminate ser It is true that, in Raj Narain v. Smt. Indira Nehru Gandhi( 3 ), vice. when this very matter came up to this Court, to decide whether an issue should ]?e struck on it, this Court had sent back the matter to the High Court after holding that an issue should be framed decide when Shri Kapur's resignation became effective and that this question "will have to be examined with reference to his conditions of service." Now, it is clear, from the rule itself, that a condition of Shri Kapur's service was that the Govt. and the Govt. servant could dis pe'.lse with the period of notice if it was mutually agreed upon to do that. Rule 5 (b) makes that abundantly clear. The learned Judge, for some· reason, completely overlooked this aspect. Neither the Govt. nor the Govt. 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 Govt. serva11t is "during the pleasure of 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 Shri Kapur with effect from the forenoon of 14.1.1971. And, this is what Shri Kapur himself wanted. Hence, [1880] 26 L. Ed. 31. (!) (2) A.LR. [1969] S.C. 180 : [1968] 3 S.C.R. 857. (3) A.LR. 1972 S.C. 1302 : [1972] 3 S.C.R. 841. / SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 559 · there is no difficulty at all in accepting the correctness of a resignation effective from the date which both parties to the contract, on p~tent facts, had agreed to. No rights of an innocent 3rd par~y w~re either involved or affected by such an acceptance of the res1gnatJO'n from the date immediately after the date on which Shri Kapur had tendered his resignation. That, as already point~d out, was als<;i t~e date. after which he had ceased to work or draw his salary. It 1s mconce1vable that the law should thrust the status .of a Govt. servant upon one who does not want it, particularly when the Govt. also does not, in public i•aterest, refuse to relieve· him by making him stick to any terms the contrary in his contract. Our law, on this point, is not so m,on strous. The position accepted by the learned Judge appears to me to be quite indefensible. · However, there was an amendment also in the Jaw by Sec. 7 of Act 40 of 1975, adding the following at the end of the Explanatio•a to Sec. 123 (7) of the Act : "(3) For the purposes of clause (7), notwithstanding •anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination 0f service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof- - (i) of such appointme1at, resignation, termination of ser vice, dismissal or removal from service, as the case may be, · (ii) where the date of taking effect of such appoint ment, resignation! termination of service, dismissal or- re mov~l !!om service, •as the case may be, is stated in such Pt;bhcat1on, also of the. fact that such person was appointed with . eff~ct from the said date, or i11 the case of resignation, . termmat10n of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date." I find that this amendment, which was made retrospective, by Sec. 10 of Act 40 of 1975, ~makes the legal position stiil clearer. The learn~d Counsel for the election-petitioll_er had assailed the validity of this amendment on the ground that powers conferred by it upon the Govt. are bound to be abused by those who hold reins of I am afraid I am unable to see any force in this contention. Govt. The pr~sumption is th!lt a bonafide use will be ma.de of this power ~odged m such responsible hands. If such powers are ever exercised m a malafid~ manner, it ·is the particular exercise of the power that .Cilll _be questioned and struck down. The provisio<a does not become invalici ~tely because it could be abused as practicallv any provision of law can be .h_v those who may want to do so. · B· c D· E. F G. H A B c D E F G H 560 SUPREME COURT REPORTS [1976] 2 s.c.R. I will next take up the period from 14.1.1971 upto 25.1.1971, when Shri Kapur is said to have gone and voluntarily worked at Rae Bareli, and to have done whatever he could to organise the conduct of the Prime Minister's electia11 after his talks with the Prime Minister. The position with regard to allegations in this period is summarised as follows :

1. He is said to have either led or to have .ioined a procession of cars taken out on 14.1.971 in the town of Rae Bareli as a part of the election campaign for t_lie original respondent although Shri U. S. Yadav (PW 41),. An Advocate, who was a staunch S.S.P. worker, produced on behalf of the electio111-petitioner, clearly stated that he had not seen Shri Kapur in that procession which he watched but he The learned Judge, however, h'ad seen him only on 15.1.1971. not only relied on the evidence of Shri R. K. Singh (PW 42) but also on that of Shri U. S. Yadav to hold that Shri Kapur must liave been "associated with" the procession of people seen i'.t1 cars and peeps taken out on 14.1.1971 shouting Congress (R) party slogans to start off the election C'ampaign.

2. On 17.1.1971, Shri Kapur is said to have participated in an electio111 meeting held ;:tt the Clock Tower. On this allegation, the learned Judge accepted the evidence of Shri R. K. Dixit (PW 31), and Shri R. K. Singh, (PW 42), although both these witnesses only stated that some confusion took place at the meeting and Shri R. K. Dixit did not even remember whether •any speech was made at all by Shri Kapur. Shri R. K. Singh also did not state that Shri Kapur actually made a speech but had said that "a disturbance took place when Shri Kapur wa•ated to deliver a speech ........ as a result of which he could not do so". The learned Judge rejected the evidence of Shri V. C. Dwivedi (RW 18) supported by Shri Kapur (RW 32) himself, that Shri Kapur was not present at all at this meeting. How ever, on the evidence of the election petitioner's witnesses themselves, Shri Kapur could do nothing whatsoever in furtherance ·of the election of the original respondent at this meeting.

3. On 19-1-1971, Shri Kapur is said to have address.od a meeting at village Nihasta where he is said to have gone in the company of Prof. Sher Singh, a Minister of State in the Government of India. Although, the tour programme of the Minister concerned showed that the Minister went to that village to inaugurate a Telephone Exchange on 18-1-1971, supported by the evidence of Jagannath Prasad (RW 16), a resident of village Nihasta and K. D. Pandey (RW 17) Post Master, Sub Post Office, yet, the learned Judge preferred the evidence of Shri R. K. Singh (RW 42) for the election-petitioner despite infirmity in this evidence that it was neither consistent with the tour programme of the Central Government. Minister sent in, advance. for this function nor with the unshaken evidence of those wno orgamsed the function.

4. It was alleged that Shri Kapur on 19-1-1971, a~a}nst in the .com pany of Prof. Sher Singh, the Ce~tral Gov~rnment Mm1ste~, men?oned above, attended a meeting held m Lal~an1. ~CJ f::ir 1.\1\ this particular SMT. INDIRA GANDHI V. RAJ NARAIN_ (Beg. J.) 561 allegation is concerned, the learned Judge thoug~t that it ~ould ~ot be A accepted becaµse it was supporttld only by op.e highly partisan witness, Shri G. N. Pandey, against 4 faultless witnesses : Abdul Jabbar (RW 25, Fatesh Bahadur Singh (RW 26) lshwar Chand (RW 27), and Ranjit Singh (RW 28).

5. On 19-1-1971, Shri Kapur was said to be present at the inaugural function of the Telephone Exchange at Behta Kalan a,nd is said to B have delivered a speech there. The learned Trial Judge accepted the evidance of Pt. Shashank Misra, (PW 32), admittedly a highly partisan witness, who was believed because of a question put to him in cross examination suggesting that there was uproar when Shri Kapur started speaking so that p.obody could hear what he said. The learned judge held that this amounted to an admission of Shri Kapur's presence and participation in this meeting. C

6. Shri Kapur was alleged to have delivered a speech on 18-1-1971 at the foundation laying ceremony of a new Post Office building at Rae Bareli in the compa,ny of Prof. Sher Singh, the Central Government Minister, mentioned above. This allegation was not accepted on the ground that it was not supported by any evidence whatsoever. All that the witnesses could remember of Shri Kapur's speech, on each occasion, was that he supported the original respondent's candi dature. Out of allegations of acts said to have been committed on 6 occasions by Shri Kapur in this period, the learned Judge found only 4 instances proved. Out of these, it was clear that Shri Kapur could not have done anything in furtherance of the original respondent's election 17-1-1971, when, according to the election-petitioner's wit nesses, he was not even allowed to ·speak. Even if al! the election petitioner's witnesses accepted by the learned Judge are to be impli citly believed for this period the position is : (a) O.n 14-1-1971 to three occasions in this period, from 25-1-1971, Shri Kapur is shown to have made a speech supporting the original respondent's candidature. (b) There is no evidence whatsoever from any source that Shri Kapur did so on any of these three occasions either after having been requested by the original respondent to do so or with her knowledge or consent or approval. (c) The only evidence in the case, on the decisive question, coming from the side of the original respondent, is that Shri Kapur did, what ever he did, entirelv on his own in!itiative and in his private and indi vidual capacity, without the slightest solicitation, request, or suggestion from the original respondent who did not even k:now what he was doing at Rae Bareli. And, this evidence, being uncontroverted, could not be rejected. It was ignored by it presumably under an erroneous belief that it was not material. In fact, it was not rejected by the Trial Court. There is no evidence whatsoever that Shri Kapur was constituted a sort of general de-~acto agent of the Prime Minister even before he D E F G H ) • ' " • A rC E F G t • 562 SUPREME COURT REPORTS [1976) 2 'S.C.R. became her election agent on 1-2-71. In deed, such a case, that Shri Kapur was constituted a de-facto ag~lllt of the Prime M:inister an?i if so what was the scope of his authority, was not set up m the petitJon a~d was not put in issue. Therefore, there is no findmg on it by the learned Judge. Could the Court then, without any proof of any specific request or solicitation or even koowledge of or consent to the doing of any particular acts Shri Kapur may have done in this period make the Minister liable for them in any way ? I think not. The election petitioner had to be confined to the case he had set up. This, as already pointed out, could only be, onl a fair reading of the petition on issue No. 1, one of specific authorisation of particular individual acts of Shri Kapur. Of this, there is not only no evidence whatsoever on record but the evidence is to the contrary. Issue No. 1, as framed, and the form of findings given on it indicate that the learned judge realized that the election petitioner's case must be confined to proof of specific acts or statements of the original res pondent herself which induced Shri Kapur, as a Government servant, to give some assistance in furtherance of her election, but the discus sion of evidence and the inferences which the learned Judge reached upon the circumstances found, indicated that the learned Judge thought that Shri Kapur was constituted a sort of de-facto agent everi before Shri Kapur was clothed with legal authority on 1-2-71. This appears to me to be ~he underlying current of thought and reasoning of the learned Judge. Thus, the result was that what was really decided was the case of a de-facto agency which was neither set up nor was the I, therefore, think that the principle that subject matter of an issue. no amounlt of evidence could be looked into on a case not reallv set up was applicable here. It was quite unfair to except the original respondent to meet a case not set up at all. Furthermore, the case of de-facto agency was, in the circumstances of the particular case, only possible to set up if the Prime Minister had made some request to Shri Kapur to go and conduct the election campaign even before he was appointed her election agent as 1-2-1971. If this was not establish ed by evidence on record, it could be said that the bottom was knocked out of .even such a hypothetical case. Had a case of de-facto agency heen even argued, it is not conceivable that certain cases of Division Benches of the Allahabad High Court itself would not have "been cited to show on what kind of evidence it could succeed. In Rustom Satin v. Dr. Sampoornanand & Ors.(1) it had been held by a Division Bench of the Allahabad High Court (V. Bhargava and J. N. Takru JJ.), inter alia (at 243) : /" "So far as the election law in this country is concerned it is a creation of statute and as such has to be interoreted in accordance with the provisions of that statute. Section 100 of the Act clearly refers to corrupt practices committed by folll· classes of persons only, viz., the candidate, his election agent, persons acting with the consent of the candidate or his election agent, and those acting without such consent. (I) 20 E. L.R. 221 @ 243. , SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 63 The corrupt practices committed by the first three classes of persons are covered by section 100 ( 1) (b), while t~ose committed by persons falling in the fourth class are provided against in section lOO(l)(d) (ii)." The same Bench of the Allahabad High Court in J. P. Rawat v. K. D. Paliwal,( 2 ) had held (at p. 456) : • " ...... even in the case of admitted workers in whose case also general consent to work for t]e candidate may be implied, the consent of the returned candidate to corrupt practice or practices complained against have to be separately proved, and reliance upon general consent, express or implied to work legitimately for the candidate is not deemed suffi cient:" After 14-1-71, the Prime Minister, like everyone else concerned, obviously believed that Shri· Kapur was no longer a Government ser vant. As I have already pointed out this was the legally correct assump tion. Even if one were to assume, for the sake of argument, that this was not so and that the learned Judge had correctly held that Shri Kapiir's resignation became effective from 25-1-1971, there could be no liability for a corrupt practice by merely permitting Shri Kapur to resign. The uncontroverted evidence is that, after resigning, Shri Kapur went to Rae Bareli voluntarily, without any request or suggestion made to him by !he original respondent or by anybody else to go to Rae Bareli and work for her election. Even his appointment as the original respondent's election agent on 1-2-71, according to Shri Kapur's eviderke, was the result of a suggestion of Shri Dal Bah:idur Singh at Rae Bareli, apparently during the Prime Minister's visit to her constituency. Cases in which help rendered voluntarily by a Government servant without any attempt by the candidate concerned to "obtain" or "procure" it were held not to constitute a "corrupt practice" of the candidate, whatever be the impropriety of it for the Government ser vant himself, were completely overlooked by the learned Judge. In Hafiz Mohd. Ibrahim v. Election Tribunale) a Division Bench of Allahabad (Mootham C. J. and Mukerji, J.) had pointed out that a Government servant has a "private personality" to. Similar observa tions of Dua J. are found in a Division Bench decision of the Punjab High Court (See: Ram Phal v. Brahm Prakash( 3 ). " I On the conclusions reached by the learn:ed Judge himself, the acts of Shri Kapur between the period 25-1-71 and 6-2-71, the date of the publication of the notification, could not be taken into account as no corrupt practice could possibly exist in that period, due to the partici pation' of Shri Kaour in any election work. And, with regard to the two earlier periods, beginning with 7-1-71, I am unable to see, for the reasons given above, how any corrupt practice could be committed by (1) XX E. L. R. 443 @ 456. (2) 13 E. L. R. 262. (3) 23 E. L. R. 92 (1968). A B c D E G H 564 SUPREME COURT REPORTS [1976] 2 ·s.c.R. A the original respondent vicariously due to anything done by Shri Kapur, even if one were to apply the law as it existed before the amendments of the Act. B c D E F G H Another question, which I may now briefly consider, is the date from which the original respondent could be said to have held herself If she was not a "candidate", upto 25-1-1971, out as a candidate. as defined by law, that would, in itself, be a sufficient ground for wiping out the effect of findings of the learned Judge on the two periods dealt with .above. • • The learned Judge had inferred that the Prime Minister was a "candidate" from 29-12-70 as she had held herself out as a candidate when she answered a question out to her on 29-12-70 at a Press Conference at New Delhi. The question and answer were as follows : "Q. A short while ago there was a meeting of the opposi tion leaders and there they said that the Prime Minister is changing her constituency from Rae Bareli to Gurgaon ? P.M. No. I am not." Jn the witness box, the Prime Minister disclosed that what she meant by the answer was that she would not contest from the. Gurgaon cons tituency. On further cross-examination, she stated : "It is wrong to assume that while giving the reply marked 'B' in j:he transcript (Ext. 132) I conveyed that I was not changing my constituency from Rae Bareli at all and empha- tically held out that I would contest electionl again from Rae In my opinion there is no basis for this assumption." Bareli. The learned Judge had, in preference to the statement of the Prime Minister herself as to what she meant, together with the evidence given by her Secretariat that there ~ere entreaties or offers to her from other constituencies that she should be their representative, relied on Press reports and what members of other parties thought and did as a result of the above-mentioned statement of the Prime Minister on 29-12-1970. The learned Judge also referred to paragraph 1 (A) of the additional written statement which runs as follows : - ,. "That in fact, there were offers, from other Parliamentary Constituencies in India, requesting this respondent to stand as a candidate for the Lok Sabha from those Constituencies an!d a final decision in regard to the Constituency was an nounced by the All India Congress Committee only on January 29, 1971, and she only held herself out as a caridi-. date on filing her nomination at Rae Bareli on 1st of Feb ruary, 1971 (underlining is by me.)" · He had also referred to the visits made by Congress (R) leaders to Rae Bareli, particularly, Shri Dinesh Singh and Shri Gulzarilal Nanda and by Prof. Sher Singh. He had not accepted the explanation that they had gone there of their own accord. SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 565 Tue learned Judge had also considered several English authorities A but had noted that the law here was not the same as in England. It had been laid in Munniswami Gounder v. Khader Sheriff & Ors. C1) where it was said : "In this respect the law in this country makes a signifi cant departure and t?at depa~ture, in our ?Pini?n•. agai? em- phasises the application of VItal democratic pnnc1ple,. m the light of differing conditions. We may here note, b~1efiy, a feature of the political practice in the United Kmgdom, which repeatedly colours and influences the English Cases, viz., the fact that there a person is often adopted as a candi- date, by a political association, without any move on his behalf, until a particular stage when the adoption is formalised by his consent." B C D I am unable to see what bearing. the activities of opposition leaders and statements issued by them or Press Reports, with regard to the candidature of the original respondent No. 1 from the Rae Bareli constituency, had upon either an interpretation of her own statement of 29-12-1970, or the date on which she made a final decision to stand as a candidate from the Rae Bareli constituency or the communica- tion of that decision by her to her constituency. The material relied upon by the learned judge consisted of speculation and hearsay corning from persons who were certainly interested in finding out which cons tituency the Prime Minister, who had a choice of Gurgaon, a consti tuency much nearer to New Delhi, and, possibly of other constituencies as well if she only wanted to change it. Absence of proof of a desire to change the constituency is not proof of a positive "holding out". E It has been repeatedly laid down in decided cases on the point 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 th~ candidate from a particular constituency. Mere speculation or rumour circulated by other persons interested in finding out the Prime Minister's constituency could only prove what their own ex- pectations or beliefs were. This type of "evidence'', strictly speaking, could not even be admissible unless it could be related to something "evidence" actually said or done by the candidate. All that such · ~ould prove was that people interested were speculating or indulging m guess-work. It seems to me that the learned Judge did not take into consideration the tactics in the political game which, to some extent, every party participating in such a game adopts. Some of these G tactics are quite legitimate and honourable, but other are not. F Th~ learn~~ Judge ref~rred to t?e contents of a speech made by the Pnmc Mm1ster a~ . Ci;)Jmbatore m South India, ii] the early part of January, 1971, castigatmg one of the. tactics of the opposition oarties !~ choo~in~ S~ri Raj Narain to oppos~ her, for purposes of maximum mud slmgmg . The learned Judge pomted out that the Prime Minister H • • • -,., •· i ~ " ~ .i ·: (1) 4 E. L. R. 283 @ 292. l 5-126SCI '76 - ' A B c D E F G H :i66 SUPREME COURT REPORTS [1976] 2 S.C.R. ad~itted in her evidence, that she could have said this in her speech at C01m'?'atorc. She was. not asked whether this amounted to holding If such a hcrseH out as a candidate from Rae Bareli constituency. .question had been asked, there is little doubt that she could have ex plained the statement by the context in which it was made, just as she had given the precise meaning of her statement of 29-12-1970 in the context in which it was made. Apparently, the context of th~ statement made in early January in Coimbatore was that the opposition parties had chosen a candidate,, who, in the opinion of Prime Minister, possessed certain capacity for "mud slinging" which others did not have. The apparent object of what she mentioned in the speech was to expose .tactics of opposition parties in choosing such a candidate from a cons tituency from which they thought the Prime Minister must be standing. 1t was obviously meant to disparage such tactics and not to disclose her own intentions or future course of action. A healthy democratic practiec or con_vcntion certainly is that the election of some candidates, of certain stature and standing or position in public life, is not contested. To point out that the opposition parties, far from intending to adoPt such an attitude towards her, were busy devising methods of maligning her, could not reasonably be constmed as a holding out of herself as a candidate from a particular constituency unless one was predisposed to put such a construction on every ambiguous statement of the Prime Minister, made anywhere after the dissolution of Parliament in Decem b~r. 1970, until the election in the first week of March, 1971. Simi larly,, the context of the question of 29-12-1970, put to the Prime Minister at a conference at New Delhi. was that members of the oppo In sit;rm parties thought that she may be contesting from Gurgaon. th, !i!lht of the opposition tactics, which the Prime Minister herself had referred to in her speech at Coimbatore, it was not unlikely that the Prime Minister would have preferred to keep her own intentions about the constituency, from which she would ultimately stand, either a closely In any case, it was not !luarded secret, or, at least, in a fluid State. likely that she would announce her own intention very clearly to stand from any particular constituency until it was considered by her or by her nolitical advisers to be politically expedient to do so. Aiiain., it may be that the prospect of such a leader standing from a particu Jar cons tituency was likely to have a politically exhilarating effect upon the workers or on party activities in that constituency. From such a point of view also. the Congress Party (R) of the Prime Minister may also have preferred that the Prime Minister should not announce her deci sion until the last moment. A disouted question of fact on such a matter could not possiblv be determined.by a Court on evidence of guess-work or speculations of others which are, strictly speaking, not relevant. I have indicated here that if some guess-work were permissible, as it is 'o give its benefit to the nerson a!lainst whom circumstantial evidence is to he used. other nossible exn!anations and internretations were not excluded. The question had to be decided on proof of the actual state mmts and actions of the candidate herself which could amount to clear and unequivocal expressions of intention. showin!! a decision to stand from a narticular constituency, meant nrimarilv for the benefit of the voters of the particular constituency so- chosen- by a candidate. Where was that evidence here? . .. • I • " j • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 67 11 seems to me that the learned Judge had given an exaggerated importance to what were either not strictly relevant or insignificant matters in preference to what could be and was decisive and unequivo- cal. I do not think that the answer of the Prime Minister at the l>ress Conference on 29-12-1970 or the contents of her speech in Coimba- tore, 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 mean that the Prime Minister had herself finally decided to contest from the Rae Bareli constituency and had held herself out as a candidate for thjs constituency. This holding out had to take place by the Prime Minister herself and not by the Congress Committee. Even if the fact o~ a declaration made by the Congress Committee, on 29-1-1971, which is all that the written state- ment admits, proves that the Prime Minister was chosen by her party for this particular constituency qn this date, her own decision on the matter could only come and was proved by her to have actually come later than that. This admission was, in my opinion,, misconstrued by In the absence of any evidence the learned Judge as a contradiction. whatsoever which could conflict with the Prime Minister's statement :about the actual date of her final decision to stand from this Constitu" ency, it seems to me that the learned Judge had no option reasonably open to him except to accept the correctness of the only and the best evidence on this question availab~e in the case. The learned Judge in observing, quite unnecessarily, that his finding on this question was not going to be affected by the importance of the office held by the Prime Minister, seems, subconsciously, to have been so affected by it that he did not act on the normal rule that the best evidence of a person's state of mind is his or her own statements and actions and not of others. He seems to have felt that judicial independence consists in inverting this rule and judging the matter primarily from the evidence of the states of mind and opinions and actions of other individuals in the case of a Prime Minister of this country. judi- · ' cially correct approach. I do not consider this to be a The fact that the tour programmes were circulated in advance for the Rae Bareli District, in which the Prime Minister made electioneer ing speeches, could also not determine what the final declaration of intention by the Prime Minister was going to be in regard to the Rae It is not enough that the candidate should have Bareli constituency. by then formed an intention to stand from a particular constituency. There is a gap between intent and action which has to be fill~d by proof of either statements or of conduct which amount to uneqmvocal declarations made to voters in the constituency in order to amount to a "holding out" to them. This seems to me to be the clear position in the law as laid clown by Courts in this country on th:! meaning of Section 79(bl of the Art. It is significant that despite the large number of speeches and state ments the ·Prime Minister must have made throughout the country. in this neriod. 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 candi- date from the Rae Bareli constituency. It is possible, as I lrnve indi- cated above, that this may be a part of the political gamz or permissible A B c D E F G H A B c D E F G H 568 SUPREME COURT REPORTS [1976] 2 S.C.R. party tactics so as to keep opposition parties guessing. It seems t() me that the learned Judge was overlooking the context, the probabilities. the natural course of events in &.uch case, the legal and logical rele vance and effect of what he thought was decisive, and, finally, the im portance of the statement of the Prime Minister hers~lf on this question, supported by complete absence of any evidence to show that she had herself made any clear and decisive statement in any speech or con versation which could shake her stand, that her final decision and un equivocal act was the filing of a nomination paper as a candidate on I may mention here that, according to the 1-2-1971 at Rae Bareli. findings of the learned Judge himself, the question of the Prime Minister holding herself out as a candidate for the Rae Bareli corutituency became quite immaterial after 25-1-1971, and, on the findings I have reached above, the whole question becomes unimportant. However, I will indicate some authorities which the learned Judge himself had noticed. In S. Khader Sheriff v. Munniswami Gounder & Ors.(1), Court said (at p. 4 73) : this. "When, therefore, a question arises under section 79(b) whether a person had become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candi date, so that it could be said of him that he held himself out as a prospective candidate. That he. has merely formed an, intention to stand for election is not sufficient to make him a prospective candidate, because it is of the essence of the matter that he should hold himself out as a prospective candi date". In J. P. Rawat v. Krishna Dutt Paliwal( 2 ) a Division Bench of the Allahabad High Court (V. Bhargava and J. M. Takru, JJ), iollowing the decision of this Court in S. Khader Sheriff's case (supra) said (at p. 463) : - "The determining factor, therefore, is the decision of the candidate himself, not the act of other persons or bodies adopt ing him as their candidate". In Haji Abdul Wahid v. B. V. Keskar & Anr.( 3 ), it was held by a Division Bench of the Allahabad High Court (R. N. Gurtu & S. N. Dwivedi, JJ) : "(i) that the purchase of the nomination forms and voters lists, could not amount to holding out as a candidate : (ii) the arranging of public meetings by the officials and the respon dent's moving about in the constituency on the 15th and 16th could not by themselves amount to a holding out by the respondent as a prospective candidate on those days in (1) 1955 (2) SCR 469 @ 473. (2) 20 E. L. R. 443 @ 463. (3) 21 E. L. R. 4-09. • ,• SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 569 the absence of evidence to show that the respondent had utilis- ed those meetings and tours for the purpose of making utter- ances of an electioneering character". In K. K. Mishra v. Banamali Babu('), the Orissa High Court, ;relying upon the following observations of this Court in S. K_hader Sheri/j's case (supra),, held that a holding out within the meantng 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 : .. "It may be that the holding out which is contemplated by that section is to the Constituency; but if it is the Central Committee that has to decide who shall be adopted for elec- tion from the concerned constituency, any declaration made to the Committee is, in effect, addressed to the constituency through its accredited representative". The view of the learned Judge' appears to me to run counter to the weight of authorities cited above. In any case, if there was any un certainty at all, in the Jaw, it has been removed by an amendment by Section 7 of Act No. 40 of 1975 so that Section 79(b) reads as follows: " 'Candidate' means a person who has been or claims to have been duly nominated as a candidate at any election"; Learned Counsel for the election petitioner contended amendment, read with Section 10 of the Act 40 of 1975, would retros pectively alter the "rules of the game" and would be destructive of the concept of free andi fair elections, if it means that a person is only a candidate after he has been duly nominated and that he can indulge in any amount of corrupt practices until the day previous to his nomi nation. Even if the present definition is a new one,, it cannot be said to be arbitrary. The concept contained in it is found in the English definition which lays down : (See : Halsbury's Laws of England-3rd Edn. Vol. '14 p. 162) : " ...... a candidate in relation to a parliamentary election means a person who is elected to serve in Parliament at the election or a person who is nominated as a candidate at the election, or is declared by himself or by others to be a candi date on or after the day of the issue of the writ for the election ...... ". • ~ The English definition is wider but contains, as its first part, the very -concept found in our new definition of a "candidate". Corrupt practices of a candidate cannot go unpunished, whether they are committed before or after he becomes a candidate, when they amount to acts which come within the purview of electoral offences dealt with by Chapter 3, Section 125, 126, 127, 127(a) or Chapter 9A of the Indian Penal Code. Offences,, such as bribery, for purposes of either inducing persons to vote or not to vote or to stand or not to (I) 38 E. L. R. 451 @ 475. A B c D E F G H A B c D E F G H 570 SUPREME COURT REPORTS [1976] 2 ·s.c.R. stand as candidates, undue influence, and personation, are all dealt with here. These should be sufficient deterrents against perversion of the electrical process by a prosp~ctive candidate, who wants to adopt corrupt anq objectionable means for gaining s.ucccss at the polis. The amendment appears to me to be within the unquestionable powers of Parliament to legislate, either prospectively or retrospecth·.o.y, with regard to election matters. I am unable to see how it is capable of being int·~rpreted as an. attack on free and fair elections, which, according to the learned Counsel for the Election-petitioner, is part of the basic structure of the Constitution. I think it is important to bear in mind that Courts cannot take upon themselves the task of laying down what ekctoral laws should be. The law makers,. assembled in Parlia- ment, 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 fr.;~e 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 over-rides a constitutional purposes or mandate or prohibition that Courts can interfere. After having listened to the lengthy and vehement arguments of the election petitioner, I fail to any invalidity in this provision. constructing rostrums I will now take up issue No. 3 of the 1st set of issue on which. after rejecting the contention that the erection of barricades and the provision of the police force for security purposes by the Government of U.P., during the election tours of the Prime Minister on 1-2-1'71 ,and 25-2-1971 in the Rae Bareli constituency, c0'11travened. Section 123 (7), the learned 'Judge held that, nevertheless, the arrangements made by the District Magistrate of Rae Bareli, the Superintendent of Police, Rae Bareli, the Executive Engineer, P.W.D. and the Engineer Hyde! Department, for and the supply of power for loud speakers, on the instructions givei,1 by the State Go· vernment, was a corrupt practice struck by the provisions of Section 123(7) of the Act. As I have already indicated, the only evidence relied upon by the learned Judge for this extraordinary finding, after having rejected a similar allegation of a corrupt practice under issue No. 2, on accoU'at of provision of the Air Force planes and helicop ters flown by members of the Force, on necessary official instructions, to enable the Prime Minister to go to places where she could address election meetings on 1-2-1971 and 25-2-1971, was that the visits these occasions were of the Prime Minister to her constituency on preceded by the issue from the Prime Minister's office of the tour programmes to the officials of the District through the State Govern- ment with the knowledge and consent of the Prime Minister. The State Government had acted in instructions issued by the Comptroller & Auditor General of India in 1958 read with Rule 71 (6) of what is known as the Blue Book. The relevant part of this rule reads as follows : compliance with the "It has been noticed that the rostrum arrangements are not always properly made because the hosts are some· cost. As the security of the times unable to bear the SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, .f.) 5 71 Prime Minister is the concern of the State, all arrangements for putting up the rostrum, the barricades etc. at the meeting place, including that of an election meeting, will have to be made by the State Governme'at concerned". The Goverament of India had also issued a letter (Ex. A21) dared 19-11-1969 inviting the attention of the State Governments to Rule 71 ( 6), mentioned above, and directing them to ensure that, whenever rostrums are constructed on such occasions, they should conform to certain specificatio'as laid down with due regard to se curity considerations. The letter also directed the State Govern ments to bill t.hc political party concerned with expenses upto 25 % less. The of the ·cost of the rostrums or Rs. 25,000, whichever letter also directed that extravagance in should be avoided. expenditure It was proved. by the evidence of Shri R. K. Kaul (P.W. 58) the Home Secretary in the Governme'at of U.P., that rostrums and arrangements for barricading are made by the local officials employ- ing contractors for the purpose, under instructions issued by State Government. The reasoning adopted by the learned Judge, however, was that, as the Prime Minister's office had issued her tour programmes, with the approval of the Prime Minister, the result must be in the language of the learned Judge himself..: ". . . . . the tour programmes carried an implied direc- tion that the State Government should also get constructed rostrums and arrange for public address system for election meetings to be addressed by her on 1st of Febru It should be pre ary, 1971 and 25th of February, 1971. sumed that the respondent No. 1, as Prime Minister, of this country, and with five years experience of that office behi'nd her in 1971, also knew that the said work was to be done by the officers of the State Government". This meant that the learned Judge was holding the Prime Minis ter herself responsible for instructing the State Government knowing that it will make the necessary arrangements through its servants. The case thus accepted, that the Prime Minister was employing the State Government as her agency in procuring the aid of the officers concemed, was neither set up nor put in issue. Apart from this objection. the learned Judge overlooked that the provisions of Sec- tion 123 ( 7) were intended to prevent solicitation for aid and not sending of information to the State Government in the course of ordinary official business even if the candidate concerned knows that the State Government is bound, under the rules, to make the neces- sary arrangements dictated by the needs of security of the Prime Minister and convenience of the public. ' • A .B C D E F G The view of the learned Judge involves holding that the "persona" H (a term derived from the concept of the mask worn by Greek actors on the stage in a drama) of a candidate during an election mnst not only be different from that of the Prime Minister, but also that, when the two capacities are held by the same person, what is due to the A B c D E F G H 572 SUPREME COURT REPORTS [1976] 2 S.C.R. occupant of the office of the Prime Minister must be withdrawn when the same person acts as a candidate. 0,1 a similar argument, with regard to use of helicopters and aeroplanes, the learned Judge him self had refused to acknowledge what amounts to a separable legal personality of a candidate in the eyes of Jaw. The ground given for this difference between the use of aeroplanes and helicopters by the Prime Minister and the use of rostrums by her was that the former was more con•aected with the office or capacity of the Prime Minis ter and that the latter was exclusively meant for her use in the capa city of a candidate. Even if we were to recognise this distinction between the "persona" of the Prime Minister and that of a candidate, it is impossible to separate the special arrangements made for the security of the person of the Prime Minister from those to which she may be entitled as a ca·adidate only. It is impossible to deny at any time the facilities and precautions meant for the person who holds the office of the Prime Minister to the person just because she also figures as a candidate at an election. So long as the person is the same what is meant for the person must be attributed to the persona or capacity of the Prime Minister and not to that of a candidate only. The learned Judge, however, thought that a candi date who happens the office of the Prime Minister of the country, is not entitled to the facilities or precautionary measures taken to protect the person of the holder of the office when election eering as though the Prime Minister and the candidate were two different persons. He was unable to see that, so !mg as the person was the same, the distinction between the two capacities or personae, for the purposes for which facilities were given and protection pro impossible and quite vided, was both factually as well as legally immaterial. to hold I also think that the learned Judge erred in holding that such a case could be one of solicitation of official aid and assistance at all. It is a case h1 which certain precautions are taken and arrangements made almost "automatically", if one may- use this word here, by officers of the State as a matter of duty towards the office held by a candidat€ who undoubtedly enjoys certain advantages which an It is as futile to complain of such ordinary candidate cannot have. a distinction made as it is to complain that a candidate possesses cer tain advanrages at an electio•a because of the personal services ren dered to the country or distinctions achieved by the candidate. Again, there are advantages which attach themselves to a candidate because of that candidate's personal qualities, qualifications, capa· cities or background. The appurtenances of office or distinctions achieved are, in my opinion, comparable to such personal advantages far as they are not en_ioyed because they are "obtained" or in so "procured". If such a result in Jaw is unfair, it is not for Courts to frad a remedy by accepting the argument advanced before us also : that those who enjoy the benefits of office must be made to realize and suffer some of its handiC'aps. This clearly means the benefit which Jaw gives, without solicitation by the ca•ndidate, a must be converted, by a judicial fiat, into a disadvantage and It is for parJioament to step in and change the Taw if an handicap. • • ·• , l SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 7 3 alteration of it is considered necessary by it. The only change that need be made in the law, if that could be the legislative i'iltent, is to provide that the holder of any office for the time being would not be qualified to stand at an election. In that event, holders of •all Ministerial offices will have to resign before they offer themselves as candidates. But, such is not our law found in the 1951 Act or anywhere else. I think that it would be extendh1g the scope of Sec. 123(7) too wide to hold that the facilities· automatically pro vided by the State to the Prime Minister, by virtue of his or her office, are also &truck by a provision directed against solicitation of official •aid and assistance by candidates. A B The learned Judge had m_entioned a Division Bench decision of the Allahabad High Court in Motilal v. Mang/a Prasad('), where it was laid down : C "We think that the word 'obtain' in section 123 (7) has been used in the essence of the meaning which con candidate. The notes purpose behind the action of the word has not been used in the se,1se of a mere passive receipt of assistance without the candi- date even being conscious of the fact that the assistance has been rendered. In order to bring the case under sub- section (7), it must be shown that the candidate did make some effort or perform some purposeful act in order to get the assistance." sub-section in the D He had also cited another Divisio"1 Bench decision of the Allaha- bad High Court in Biresh Mishra v. Ram Nath Sharma & ors.( 2 ), E that: "The words 'obtain' or 'abetting or attempting to obtain or procure' any assistance necessary imply some effort on the part of candidate or his agent. Mere passive receipt of assistance is not contemplated by the Section." 'procure' or . ' I think tlrat the import of such observations was clearly what has been laid down repeatedly by this Court and emphasized by me already-that a mens rea as well as an actus reus must be shown, on the evidence on record, before a candidate can be held guilty of a corrupt practice. In Sheopat Singh v. Ram Pratap (3), this Court held, in dealing with the allegation of corrupt practice under Sec. 123 ( 4) of the Act, that mens rea was a necessary ingredient of the corrupt practice a1ad that the doctrine of constructive knowledge was not applicable here. In the case before us, the election petitioner alleged a wrong fully "obtained and procured" assistance due to acts of the original respondent as well as her election agent Shri Yashpal Kapur. Hence, (1) AIR 1958 All. 794 @ 797. (2) 17 E. L. R. 243 @ 253. [1965] l SCR. 175. (3) F G H \, ' 574 SUPREME COURT REPORTS (1976) 2 S.C.R proof of actual mens rea as well as actus reus ou the part of either the candidate herself or her election agent had to be given. This was not done. The election-petitioner was, therefore, liable to be rejected on this ground alone. If, however, there was any doubt or uncertainty on the matter, the view taken by the learned Judge had, at any rate, directed the attention of Parliameat to the need for a clarification of the law It is not possible to object to the motives which became necessary. behind the legislation on this ground. Parliament could certainly set right a defect in law which may have come to its notice as a result of the learned Judge's interpretation of Sec. 123 (7). The In order to clarify the defect may be due to a possible ambiguity. Jaw, Sec. 7 of the Act 40 of 1975 inserted a proviso at the end of Sec. 123(7), which runs as follows: • • "Provided that where. a'ay person, in the service of the Government and bdonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or th ng, for, to, or in relation to, any candi date or his agent or any other persO'a acting with the con sent of the candid;1te or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that c;mdidate's election." The learned Couose 1 for the election-petitioner has, very fairly, conceded that, if this amendment, which is retrospective by reason of the operation of Sec. 10 of Act 40 of 1975, is valid, the decision of the learned Judge on the above mentioned issue No. 3 would not be sustainable. Such a concession, i·acidentally, means that what ever facilities were give i to the Prime Minister by the construction of rostrums or provision of power for the loud-speakers, for which the party was also billed, at least to the extent of Hh of the expenses of the rostrums and wholly as regards the expenses of loud-speakers, were their official given by the officers concerned in the performance of duties. This is not the same thing as "obtaining" or "procuring'' by solicitation. A B C D E F Learned Counsel for the election-petitioner has, however, forward the same objection to this retrospective amendment as the one against a change in the definition of "candidate". It appears to me that this amendment is merely clarificatory of the state of Jaw as it really was eve'n before the amendment. On the view I take, there is no question he :e of altering the "rules of the game" to the disadV'antage of the election petitioner. The disadvantage, if any, was there already because of the consequences which, I think, legally and naturally flow from the occupation of the high office of Prime Minister of this ~ountry: G H ... " .• There is no attack on the validity of Sec. 123 (7) of the Act as it existed before the ame'.1dment. Hence, there could be no chat- \ • ;. SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 7 5 lengc to the validity of the amendment if it does not, as I think it does not, ch•ange the law but merely clarifies it. Learned Counsel for the election-petitioner contended that, as a candidate at an election, the Prime Minister and a'a ordinary candi date should enjoy equal protection of the laws and should be afford ed equal facilities irrespective of the office occupied by one or two or more candidates. Such an attack upon the validity of this amend ment seems to me to be possible only under the provisions of Art . 14 of the Constitutio•,1. But, as Act 40 of 1975, has been placed by Sec. 5 of tht> 39th Amendment in the protected 9th Schedule of the Constitution, it becomes immune from such an attack.. After the practically unanimous opinion of this Court in Kesvananda Bharati's case (Supra), that such an immunisation of an enactment from an attack based upqn an alleged violation of the chapter on fundamental rights is constitutionally valid, I do not think, that a similar attack can be brought in through the back door of a "basic structure" of the Constitution. Moreover, I am u•nable to see how this particular amendment has anything to do with damage to any part of the "basic structure" of the Constitution. Even if an attack on the ground of a violation of Art. 14 .were open today, I think that the occupation of such a high and importa'nt office as that of the Prime Minister of this country, with all its great hazards trials, would ·provide a rational basis for reasonable classification in respect of advantages possessed by a Prime Minis_ter as a candidate at an election due to arrangements made pecessary by consideratio'ns . of safety and protection of the life and person of the Prime Minister. Hence, I am unable to see any sustainable ground of attack at all on the validity of this provision. I have done so for several reasons. Firstly, l think Before I proceed further, I may me'ation that I have dealt with the findings of the learned Judge, assailed by the original respon dent's appeal No. 887 of 1975, perhaps in greater length and depths, after going through the evidence in the case, than I had set out to do. oature of the attack upon the bo•aafides of the amendments made, although ordinarily not even entertainable, having been permitted due, to the constitutional importance and gravity of the allegations made, this question could not, in my opinio'n, be satisfactorily dealt with without considering the nature of the :findings and the evidence at some length so as to satisfy myself that no such question could possibly •arise here. Secondly, if the amendments were made neces saty for reas0',1s brought out fully only by dealing with facts and findings in this case, they could not give rise to any grounds to sug gest that there was anything· wrong in making amendments to re move such reasons. Therefore, I think, it was necessary to go into these for determining whether the amendments are good. Thirdly, even if the amendments are valid, we had to be satisfied that the tests of corrupt practices alleged are not fulfilled despite the conces sion of the election-petitioner's learned counsel that this would be the position. Fourthly, find that the learned Judge has made cer tain manifest errors in appraising the evide'ace and interpreting the A B c D E F G H A B D E F G 576 SUPREME COURT REPORTS (1976) 2 S.C.H. law which call for rectification by this Court as no other authority can properly do this. It appears to me, as already indicated by me, that the learned Judge was perhaps unduly conscious of the fact that he was dealing with the case of the Prime Minister of this country. He, therefore, oas he indicated in his judgment, seemed anxious 'UOt to allow this fact to affect his judgment. Nevertheless, when it came to apprais ing evidence, it seems to me that, as I have already pointed out, he applied unequal standards in assessing its worth so as to largely relieve the election-petitioner of the very heavy onus of proof that lies on a party which challenges the verdict of the electors by allega tions of cqrrupt practices. He also appeared to be attempting achieve, by means of judicial interpretation, an equalisation of condi tions under which, in his opinion, candidates should contest elections. I think, that it is not the function of Courts to embark o•a attempts to achieve what is only in the power of Parliament to accomplish, that is to say, to bring about equality of conditions . where the law permits justifiable discrimination. As repeatedly pointed out, to treat unequally situated and circumstanced persons as though they were equals in the eyes of law for all purposes is 'Clot really to satisfy the requirements of the equality contemplated by the Constitution. this Court has As regards appraisal of evidence in such a case, I may point out that, in Rahim Khan v. Khurshid Ahmed('), Krishna Iyer, J., speak ing for this Court, said : "An election once held is not to be treated in a light hearted man'i1er and defeated candidates or disgruntled elec tors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of u>acertainty in the verdict already rendered by the electorate. An election is a politi cally sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written oand show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelli'ng the Court to uphold the cor- rupt practice alleged against the returned candidate is ad duced. Indeed, election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi- criminal nature wherein strict proof is necessary. The bur den is therefore heavy on him who assails an election which has been concluded." This Court also said there (at p. 672) : H "We regard it as extremely u111safe, in the present climate of kilkenny-cat election competitior.1s and partisan witnesse.~ (1) [19741 (2l sec 660, 666, 672. • • • ' ; • \ SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 77 wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of cor- rupt practices which might not merely cancel the election result, but extinguish many a man's public life." I will now take up the election petitioner's cross appeal No. 9091 75. Learned Counsel for the election petitioner, very properly and frankly. conceded that he could not successfully assail the findmgs of the learned Judge on issues Nos. 4 & 7 relating to alleged distri bution of quilts, blankets, dhotis, and liquor by workers of the· origi- nal respondent or the alleged provision of free conveyance by vehicles said to have been hired by Shri Kapur. The evidence on thes.e ques ti<Yas given by the election petitioner was too flimsy and e~travagant and was met by over-whelming evidence to the contrary given by respectable residents of localities in which the alleged corrupt prac- tices ar~ said to have taken place. No driver of any conveyance was produced. Nor was any person produced who had actually re ceived any alleged gift or had consumed anything provided on be half of the successful candidate. A B c D As regards issue No. 2, relati'ag to the use of aeroplanes and helicopters by the original respondent, which was not separately pressed evidently because it was covered by the amendment which was assailed by the election petitioner, the reasons I have given on issue No. 3 for upholding the validity of the amendment relating to the services rendered by Government officials defence forces in due discharge of their duties are enough to cover the points raised. a'ad members of E As regards issue No. 6, relating to the adoption of the drawing of a cow and a calf as the symbol of the Congress (R) Party of original respondent, the finding of the Trial Court, based on a large number of authorities, was that this is 1aot a religious symbol. This F question was directly decided in Bhartendra Singh v. Ram Sahai Pandey & Ors. (1), Shital Prasad Misra v. Nitiraj Singh Chaudharyf2) decided by M.P. High Court on 21-7-71; and Sri Prasanna Das Damodar Das Palwar v. lndu Lal Kanhaiya Lal Yajnik (3), decided on 27-8-71 by the High Court of Gujarat. The learned Judge also cited the following cases where it was decided that a cow is not a religious symbol : G Shah Jayanthi Lal, Amba Lal v. Kasturi Lal Nagin Das Doshi (36 ELR 189); Baijnath Singh Vaidya v. R. P .. Singh (36 ELR 327); Bishambhar Dayal v. Raj Rajeshwar & Ors. (39 ELR 363' at p. 376); Dinesh Dang v. Daulat Ram (39 ELR 465 at p. 476); Shyamlal v. Mausa Din & Ors. (37 ELR 67 at p. 89); B. P. Maurya . H (1) AIR 1972 M. P. 176@ 179. (2) M. P. Gazette, 23-6-1971, Pt. Ip. 809 paras 18 to 23. (3) Gujarat Gazette dt. 20-7-1972, Pt. 4C, p. 1042 at pp. 1355 to 1362. 5 78 SUPREME COURT REPOR1S [1976] 2 s.c.R. A v. Prakashvir Shastri (37 ELR 137 at p. 147); Sohadar Rai v. Ram Singh Aharwar & Ors. (37 ELR 176 at p. 188); Vishwanath Pd. v. Sa/amat Ullah & Ors. (27 ELR 145 at p. 186) & Lachchi Ram v. J. P. Mukhariya & Ors. (9 ELR 14~ at p. 157). In. addi.tion, Sec. 8 of the Act 40 of 1975 has made the position on t?1s pomt also very clear by providing. th_at, in Sec. 123 of the B Act m clause (.3), the following proviso shall be inserted at the e'.1d : "Provided that no symbol allotted under this Act to a can.dictate shall be deemed to be a religious symbol or a national symbol for the purposes of this _clause." ,, c D E F G H As in the case of other amendments, this amendment was also challenged on behalf of the election petitioner on the ground that it could ~e misuse?. _I am afraid that attacks made on such sweeping. suggest10ns of likelihood of misuse, in future, cannot possibly suc- c~~d. It h~s been repeatedly laid down by this Court that the possi l!:nhty of misuse of a power given by a statute cannot invalidate the (See Dr. B. N. Khare vs. State of provision conferring the power. Delhi [1952) SCR 519 at p. 562; State of W.B. vs. A. A. Sarkar [1952] SCR 284 at p. 301; R. K. Dalmia vs. Justice Tendolka~ [1959] SCR 279 at p. 306; T. K. Mudaliar vs. Venkatachalam [1955] 2 SCR 1196 at p. 1239; Chitralekha vs. State of Mysore [1964] 6 SCR 368 at p. 382-383; M. R. Deka vs. N.E.F. Rty. [1964] 5 SCR 683. The occasion to complain can only arise when th~re 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. · It was submitted that the Election Commissioner's decision on this question was unreasonable. The best class of evidence as to what reasonably regarded as a religious symbol, is and what is not to be according to the customs, mores, traditions, and outlook of the peo ple of a country at a certain time consists of contemporaneous deci- It is useless to quote passages from ancient texts sions of Courts. about the sacredness of the cow in support of the use of the cow as a religious symbol today. The use of pictures of this excelle',1t and useful animal is so frequently made today for commercial purposes or purposes other than religious that the representation of a cow and a calf cannot, except in some special and purely religious contexts, be held to have a religious significance. I, therefore, see no force at all in this submission of the election petitioner. The only questio~1 argued with some seriousness in the election petitioner's appeal was that the election expenses. which form the subject matter of issue No. 9, had exceeded the limit of authorised expenditure imposed by S. 77 of the Act read with Rule 90. On this issue, the learned Judge had considered every allegedly omitted item of expense very thoroughly and had reached the conclusion that following 3 items, totalling upto Rs. 18,183.50 had to be added to the return of election expenses of the original respondent which men tioned items totalling upto Rs. 12,892.97. These were : (1) Cost of rostrums Rs. 16,0001-; (2) Cost of loud-speakers installation of I I , , SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 5 7 9 Rs. 1,951/-; (3) Cost of providing transport for one journey by car A Rs. 232.50. but the application o_f On this issue, the learned Judge's appreci•ation of evidence was not only very thorough a•ad correct, governing law on the subject also appears to me to be faultless. Ordi narily, we do not, sitting even in first appeals on questions of law as well as of fact in election cases, go into findings of fact arrived at without misapplication of law or i;:rrors of appro"!_ch to evidence. la the case before us, two main questions and one subsidiary ques tion, each of which is a mixed question of fact and Joaw, which deserve consideration by this Court on this issue, have been raise@ before us. I will deal with these questions briefly seriatum. • The first question is : If the party, which a candidate represents, spends or others also spend some money on h_is or her election, is this expenditqre one which can be or should be properly i'i1cluded in candidate ? the statement of election expenses Arguments before us have proceeded on the assumption made by both sides that some expenditure was incurred by the Congress (R) Party and some expenditure must also have been incurred by those who either voluntarily helped or even thrust their supposed assistance, whether it was helpful or not, upon those managing the original res pondent's election, which was not shown as part of her election ex Is the successful candidate bound, under the !'aw, to show penses. this also as part of election expenses ? submitted by This question assumed special importance after the decision of this Court in Kanwar/al Gupta v. Amarnath Chawla(''), where a Division Bench of this Court observed : "Now, if a C'andidate were to be subject to the limita tion of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in con•aection with his election, the object of imposing the ceiling would be completely frustrated and _the beneficient provision enacted in ·the interest of purity and genuineness of the democratjc process would be wholly emasculated. The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena life of the with redoubled force and vitiate the political cou\1try. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Preamble of our Constitution would re main merely a distant dream eluding our grasp. The legis lators could never have intended that what the individual candidate cannot do, the political party spO'asoring him or his friends and supporters should be free to do. Tliat why the legislators wisely interdicted not only the incurring but also the authorising of excessive expenditure by a candi date. When _the political party sponsoring a candidate in curs expenditure in connection with his election as distin guished from expenditure on general party prop~ganda and (l) AIR 1975 S.C. 308 315-316. B c D E F G H A c D E F G H i I • SUPREME COURT REPORTS (1976] l, S.C.R. the candidate knowingly takes advantage of it 0r parti cipates in the programme or activity or fails to disavow the expenditure or consents to it or acquieses in it, it would be reasonable to infer, s•ave in special circumstances, that he impliedly authorised the political party to incur such ex penditure and he can11ot escape the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualifica tion, it must exercise, control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and suppor ters di~ectly in connection with the election of the candi date." After making the above-m~ntioned obser_voations, the apparently broad sw~p of the observations was limited as follows : "It may be cantended that this would considerably in hibit the electoral campaign of political parties but we do not think so. In the first place, a political party is free to incur any expenditure it likes on its general party propar ganda though, of course, in this area also some !imitative ceiling is eminently desirable coupled with filing of return investigate of expenses and an incurred and take action. which can be identified with the election of a given candi date that it would be liable to be added to the expenditure of that candidate as being impliedly authorised by him. Secondly, if there is continuoµs commuaity involvement in political administration punctuated by activated pha~es of well-discussed choice of candidates by popular participation in the process of nomination, much of unnecessary expendi ture which is incurred today could be avoided." tadependent machinery to It is only where expenditure is It is not necessary to quote further from the judgment which sug gests taking of steps for reform of electoral machinery so as to ensure· "choice of candidates by popular participation in the process of nmni nation", because that would take us into a territory beyond mere in" It is clear from the passages cited terpretation of the law as it exists. and later parts of the judgment that the earlier decisions of this Court, requiring proof of authorisation by the candidate of the election expen diture for which he could be held responsible, and in particular. Rananjaya Singh v. Baijnath Singh('), which I shall refer to again a It is enough to observe that the passages little later, are considered. quoted above rest on the assumption that, where there are special cir cumstances in a case which constitute a political party an implied agent of the candidate himself, the candidate will be responsible. It was also suggested there that a political party itself must exercise so!Ile control t , {I) [1955] I S.C.R. 671. SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, ./.) 58 ! over the expenses of the candidate it sets up. The objection was to a A canpidate merely using the political party as a channel or cover for ex penses incurred by the candidate himself. This explains the exclusion of expenses for "general party propaganda" from those for which the candidate is accountable and liable. Such expenses could be, it was held, properly incurred by the party itself, irrespective of the source from which· the party obtained funds for carrying it on. What is de,-, clared to be expense incurred by the candidate is that expense which B his party may incur either as an express or implied agent of the candi- date and that only. The difficulty which faces the election-petitioner at the out set in taking up a case of implied authorisation, on the strength of anything observed or decided by this Court in Kanwar/al Gupta's case (supra), is that no such case was set up here. The petition does not say that the local Congress (R) Party was really an express or implied agent of the original respondent or that it had acted in a manner from which it could be inferred that the funds were really being supplied by original respondent and were merely being. spent by the party or its workers for the election under consideration. No facts or cifcums tances were at all indicated either in the petition or in evidence from which such inferences were possible. On the other ham], what is cought to be pointed out now in the case before us is that a sum of Rs. 70,000/ was shown to have been received from some undisclosed sources by Shri Dal Bahadur Singh, the President of the District Congress Com mittee at Rae Bareily, and that a large part of it was shown, from en tries in the bank account of the President of this Committee, to have been disbursed during or soon after the election. The responsibility of the District Congress Committee was, however, to carry on propaganda and supply information in 3 parliamentary constituencies. Neither party summoned Shri Dal Bahadur Singh to give evidence.so_ that it could not be proved what proportion of any of this sum of Rs. 70,000/- was spent and in what work and for which of the 3 Parliamentary consti tuencies. All that was alleged, in paragraph 13 of the petition, is that the '~expenditure incurred by the respondent No. 1, Smt. Indira Nehru Gandhi and/or her election agent Shri Yashpal Kapur was much more than Rs. 25,000/- which was the permissible amount". After that, particulars of 11 items were given, out of which the first was hiring of 32 vehicles whose numbers are mentioned. There is no mention what soever in this list of any sum paid either by the original respondent or by anyone else on her behalf to Shri Dal Bahadur Singh or of any ex" pense incurred on behalf of the original respondent by this gentleman. ;The principle that no amount cf evidence can be looked into on a case not set up is sufficient to dispose of this evidence of a cheque of Rs. 70,000/- received by Shri Dal Bahadur Singh. c D E F G It is true that the case set up is that tl1e prescribed limit of expen diture was exceeded and the case is so stated that items beyond the list could conceivably be added. Nevertheless, unless and until. there is a plea that something was spent by th~ Congress (R) Pa~ty, either as an express or implied agent of the oritnnal respondent, this loop-hole l_eft in the petition would not suffice, Sec. 83 ( 1) (b) of the Act cont ams 16-126 SCJ/76 H ·' A B c D E F G H 582 SUPREME COURT REPORTS [1976] 2 S.C.R. the mandatory provisions ~at the petition "shall set forth full parti culars of any corrupt ~ractlce that the petitioner alleges, including as full a ~tatement as possible of the names of the parties alleged to have c~m~mtted such corrupt practice and the date and place of the COITu m1ss10n of each such practic_e". . The judgment of this Court, in Kanwar/al Gupta's case (supra) discusses a number of cases decided by this Court which show that it is n?t enough to prove expenditure of money by a candidate's party or friends or relations. It must be also proved that this was expenditure authorised by the candidate and incurred as the candidate's express or implied agent. These cases were : Rananjaya Singh v. Baijnath Singh (1955) 1 SCR 671, Ram Dayal v. Brijraj Singh ( 1970) 1 SCR 530, Megraj Patadia v. R. K. Bir/a (1971) 2 SCR 118 and B. Rajagopala Rao v. N. G. Ranga (AIR 1971 s.c. 267). After examining this catena of cases, I think, with great respect, that the decision of this Court in Kanwar/al Gupta's case (supra) could be understood to point in a direction contrary to that in which previous cases were decided. Hence, it appears to me that the amend ment made by Act 58 of 1974, by adding the explanation (1) to Sec. 77 ( 1) of the Act, could be justified as merely an attempt to restore the law as it had been understood to be previous to decision of this Court in Kanwar/al Gupta's case (supra) : I • • • "Explanation 1.-Notwithstanding any judgement, order or decision of any court to the contrary, any expenditure in curred or authorised in connection with the election of a candidate by_ a political party or by any other association or body of persons or by any individual (other than the candi date or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in con nection with the election incurred or authorized by the candi date or by his election agent for the purposes of this sub section : Provided that nothing contained in this Explanation shall affect- ( a) any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordin~nce, 1974, (b) any judgment, order or decision of a High Court whereby the election of any such candidate has been ?eclare~ void or set aside before the commencement of the said Ordi nance if no appeal has been preferre.d. to the Supr~me Court against such judgment, order or declSlon of the. H!gh. Court before such commencement and the period of hm1tat1on for filing such appeal has expired before such commencement." ., .. T .. ". / SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 583 It appears to me that both parties to the case now before us were A under the impression that the expenses incurred by a political party over its candi~ate's electi?n was outside. the pr~scribed limit which operated O!JIY agamst expenditure by a candidate himself. Hence, the petitioner had not pleaded expenses incurred by the party of the original respon dent as expenses authorised by the original respondent. The test of authorisation would naturally be the creation of a liability to reimburse wh0ever spends the money and not necessarily' the provision of money B before-hand by the candidate on whose behalf it is spent. Neverthe- less, the authorisation has to be set up and proved. the written statement filed on behalf of the original respondent, it was very frankly admitted that some expenditure, incurred by the local Congress Party itself, had not been shown a5 election expenses of the candidate herself, This was the position because, on the side of the original respondent also, the law was understood to be as it is found now clarified by the C addition of an explanation to Sec. 77 (I) of the Act. In The second question which arises for consideration is : if some ex penses are shown or admitted to have been incurred by the candidate's party or third persons over the election of the successful candidate, is it possible to separate it from a total expenditure on more than one con~ stituency by some process of estimation and apportionment? Of course, this question can only arise if it is first proved that whatever expendi ture was incurred by candidate's party or by some other person, who may be a friend, a relation. or a sympathiser, was incurred in circum stances from which it can be inferred that the successful candidate would re-imburse the party or person who incurred it. As I have al ready held, it is only then that expenditure could be held to be authoris ed by the candidate. It is not enough that some advantage accrued or expenditure was incurred within the knowledge of the candidate. This was very clearly brought out i!l Rananjaya Singh v. Baijnath Singh and In this case, the Manager, Assistant Manager, 20 Ziladars, ·Ors.('). and peons of. the proprietor of an estate in Uttar Pradesh had carried on election, •. work, after.having been given a holiday on full pay by the proprietor of the estate who was the father of the successful candidate. It was contended that inasmuch as these persons were virtually emc ployees of the candidate himself, their salary for the dav must be added to the list of election expenses. This Court repelled this contention on the ground that this extra expenditure had not been authorised by the candidate or his agent. Hence, it need not be shown as an item of relations, or election expense. Voluntary expenditure by sympathisers and expenditure incurred by a candidate's party, without any reques~ or authorisation by the candidate, has never been deemed (See : Ram Dayal v. to be expenditure by the candidate himself. llriiraj Singh [1970] 1 SCR 530); Megraj Patadia v. R. K. Birla [1971] 2 SCR 118). - friends, • D E F G An attempt was then made to pass the responsibility on to the ori ginal respondent for the expenses of atleast 23 vehicles whose number~ H are mentioned in a letter dated 25th February, 1971, written by Shn (0 [1~51 (!) s::: R 671. A B c D E F G H 58 4 SUPREME COURT REPORTS (1976] 2 S.C.R •. Kapur, who was then the original respondent's election agent and sent to the District Officer, Rae Bareily, stating as follows : ' "Sir, ~ beg to say that the District Congress Committee, ~ae Bare1ly has taken the followmg cars for dcction purposes 111 the three Parli~mentary Constituencies, Rae Bareily, Amethi and Ram Saneh1 Ghat. You may, therefore, kindly release them." After giving numbers of the vehicles the letter proceeds ; . "It is therefore r.cquested that the abovesaid cars may kmdly be released without delay. The letter of the President of District Congress Committee about the abovesaid cars i~ enclosed herewith." The letter of the President of the Committee, mentioned by Shri Kapur, was a rather urgent request made to him by Shri Dal Bahadur Singh,. on 24-2-1971 (Ex. A-43), after informing him that he is in difficulties as he had tried to find out unsuccessfully the whereabouts of Shri V. Vajpayee, who was contesting election from Amethi Parliamentary Constituency, and of Shri Baiznath Kurecl, who was contesting election from Ram Sanchi Parliamentary Constituency. He, therefore, asked Shri Kapur, the election agent of the original respondent, to seml a letter to the District Officer, who had refused to release the vehicles. without the endorsement of the candidate concerned or his or her elec tion agent. It is clear from the above-mentioned correspondence that Shri Kapu~ was not speaking on behalf of the other two candidates of ad joining Parliamentary Constituencies. He was not even undertaking to pay anything for the use of the vehicles on behalf of the original res- pondent. Shri Kapur also did not state that these vehicles were needed for work in the original respondent's constituency. He merely forward ed the letter with a request for compliance with what Shri D. B. Singh wanted. Shri Dal Bahadur Siniih was concerned and entrusted with conducting electioneering work in three adjoining Parliamentary Consti tuencies successfully. He had, therefore, made a frantic appeal to Shri Kapur to come to his help. Shri Kapur, without concealing any fact, had sent this very letter with a request for the release of the vehicles to the District Officer concerned. On this evidence, the learned Judge came to the conclusion that it was not possible to say which vehicles, said to be Jeeps, had been utilized for election work and in which con- stituency. The learned Judge after considering the evide~ce r_ecorded the finding that it was not possible to hold that the 23 veh1cl~s 111 ques tion had been used exclusively for the purposes of the elect10n of the oriiiinal respondent and not for "general party propaganda purvoses" fat which the original respondent was not liable to pay. In Hans Raj v. Pt. Hari Ram and Ors(1'), this Court in a similar situation said : "Whichever way one looks at the matter it is quite clear in in Rananjaya view of the decision of this Court reported (1) 40 E. L. R. 12s:& 128-129. '. r'- '/ "' I . -\ SMT .. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 58 5 Singh ".· Baijnath Singh & Others [1955] 1 SCR 671 that the ·e~pend!ture. ~ust be by the candidate himself and any expen diture. m his mterest by others (not his agents within meanmg of the term m the election law) is not to be taken not.e of. Here the hiring was by the Congress Committee which was not such an agent and therefore the amount spent by the Congress Committee cannot be taken as an amount which m_ust compulsori.ly be included in the expenditure over the ele?tion by a can~1date. If this be the position, we have to decide whether th1.s amount spent on the jeeps must be . taken to b~ an expenditure made by the candidate himself. Of that there 1s no evidence. The bill stands in the name of the Congress Committee and was presumably paid by the Con- gress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty is that this jeep was used also for the general Congress propaganda in other constituencies." A B , c In Shah Jayantilal Ambalai v. Kasturilal Nagindas Doshi and Ors.(1') ., ! this Court held : 0 "It is now well settled that expenses incurred by a political party in support of its candidates do not come within the mischief of s. 123 ( 6) read with s. 77 of the Act." In Samant N. Balakr.ishna Etc. v. George Fernandez and Ors. etc. ( 2 ) this Court pointed out : "In India all corrupt practices stand on the same footing. The only difference made is that when consent is proved on the part of the candidate or his election agent to the com mission of corrupt practice, that itself is sufficient. When a corrupt practice is committed by an agent and there is no such consent then the petitioner must go further and prove that the result of the election in so far as the returned candi- date is concerned was materially affect~d." However as I have already held, there is no case or evidence be fore us that' the Congress Party was the agent, express or im~lied, of the original respondent or a~ting as the channel through which. ~ny money whatsoever was spent by the original responde1.1t. The J?etitio~ could not possibly succeed on the ground of exceedmg election ex penses. On the other hand, on the findings given by me above, the expenses on the construction of. rostrums were also err~neously, ad.ded by the learned Judge. In fact, 1t seems that other two items n,icnt10n ed there were also wrongly added. Expenses of the installat10n and use of loud-speakers and- the power supplied were certainly shown to It is true that when have been borne by the Congress Party itself. (1) 42 E. L. R .. 307 @ 311. (2) fl %9] 3 SCR 603 @ 637. E F G H A B c D E F G H 586 SUPREl\fE COURT REPORTS [!976] 2 S.C.R. el~c~ions of person~ in . the position of the Prime Minister or even of Mm1sters, whether m the Central Government or a State Government, take place, a number of people come forward to either oive or thrust It may be impossible for the candi their supposed aid in the election. date to refuse it without offending them. But it is also impossible for the. Courts to ma.ke ~he candidate himself or herself responsible so as ~o impose an obhgat1on upon the candidate to find out what expenses mcurred by them were and then to add these on to the candidate's account of expenses. That would be, obviously, a most unfair result. And, this is not what the law requires in this Country, The law re ql]ires proof of circumstances from which atlcast implied authorisation can be inferred. The third and the last and a subsidiary submission on behalf of the election petitioner, on election expenses, was that, Shri Dal Bahadur Singh not having been produced by the original respondent, some sort I do not think of presumption arises against the original respondent. that it is possible to shift a burden of the petitioner on to the original respondent whose case never was that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chenna Reddy v. Ram chandra Rao(l') was relied upon to submit that a presumption may arise against a successful candidate from the non-production of avail able evidence to support his version. Such a presumption, under Sec tion 114 Evidence Act, it has to be remembered, is always optionaf and one of fact, depending upon the whole set 0±1 facts. (ot obligatory. It In Chenna Reddy's case (supra), the evidence seemed to have resulted in a prima facie case whose effect the respondent had to get In the case before us, the election petitioner had su111111oned rid of. Shri M. L. Tripathi QPW-59), the Secretary of the District Congress Committee, who appeared with account books of the Party at Rae Bareily. The election petitioner could get nothing useful out of his evidence. Even if the election petitioner did not, for some reason, desire to summon Shri Dal Bahadur Singh similarly, his counsel could have requested the Court to exercise its discretionary powers under Order XVI Rule 14 C.P.C., but this was never done. A pre~umption could not ~rise on the facts and circumstances of a case in which it could not be said that Shri Dal Bahadur Singh's evidence was neces sary to discharge some burden of the original respondent. The origi_nal respondent had discharged whatever onus lay upon her by producmg her own election agent Shri Kapur, who had kept her accounts. A;nd, she had herself appeared in the witness box and faced a cross-exa~111a­ tion which could not be held up as an example of compl~te fairness I do not quite understand what presumpt10n ~ould and propriety. possibly arise, due to non-production of Shri · Dal Bahadur S1~gh, against what part of her case, and to what effect. It could certamly not be suggested that there was any duty on her part to repel some case never set up against her. Congress Party was her agent. m-4o£:-L:·R-:J;:-39o-@41 s. It was nobody's case { /- SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 58 7 I may now very. shortly deal ~ith the objection that, as a number of Me1:11bers of Parliament belongmg to the opposition parties were in deten.tion, under the preventive detention laws, which could not be questioned before Courts of law, because of the declaration of emergency by the President, there was a procedural defect in making the amendments of the Act of 1951 and the 39th Constitutional amendment. Articl~ 122 of. the Constitution prevents this Court from going into any question relatmg to irregularity of proceedings "in Parliament". It reads as follows : "122. (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating proce dure or the conduct of busines's, or for maintaining order, in Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers." What is alleged by the election petitioner is that the opposition Members of Parliament, who had been detained under the preventive detention laws, were entitled to get notice of the proposed enactments and the 39th amendment, so as to be present "in Parliament", I am afraid, such an objection is oppose these changes in the law. 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". There is no provi sion of the Constitution which has been pointed out to us providing for any notice to each Member of Parliament. That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this Court can look into, in appropriate cases, is whether the pro cedure which amounts to legislation or, in the case of a Constitutional amendment which is Prescribed by Article 368 of the Constitution, was gone through at all, As a proof of that, however, it ~ill accept, as conclusive evidence, a certificate of the Speaker that a Bill has been duly passed. (JSee : State of Bihar v. Kameshwar) (1) Again, this Court has held, in Sharma v. Sri Krish11a( 2 ), t~at '.l notice issued by the Speaker of a Legislature for the breach of its pn vilege cannot be questioned on the gro1:'n.d that the rules of procedure relating to proceedings for breach of pnvilege .have not been observ~d. All these are internal matters of procedure which the Houses of Parlia ment themselves regulate. As regards the validity o~ the detention~ of the Members of P~rlia~ ment, that cannot be questioned automatically. or on the. bare 'tate ment by counsel that cert~n Members of Parliament are illegally de tained with some ulterior object. The enforcement of fundamental -{i)-AIR 1952 SC 252 @ 266. (2) AIR 1960 SC 1186 @ 1189. A B c D E F G H .. ' A B c D E F G H 58 8 SUPREME COURT REPORTS [1976] 2 S.C'oR. rights is regulated by Articles 3 2 and 226 of the Constitution and the suspension of remedies under these articles is also governed by appro priate constitutional provisions. Their legality and regularity cannot be collaterally assailed by mere assertions made by Counsel before us. I, therefore, over-rule these objections to the validity of the amend ments and the 39th amendment as we cannot even entertain them in this manner in these proceedings. l will now turn to the validity of clause ( 4) of Article 329A sought to be added by Section 4 of the 39th Amendment. whole of Section 4 as some argument was acjvanced on the context in which clause ( 4) of Article 329A occurs. Section 4 reads as follows : I will quote .. • "4. In part XV of the Constitution, after article 329, the following article shall be inserted, namely : - "329A. (1) Subject to the provisions of Chapter II of part V (except sub-clause (a) of clause (1) of article 102), no election- (a) to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election; (b) to the House of the People of a person who holds the office of Speaker of that House at the time of such electi9n or that House after such who is chosen as the Speaker for election; shall be called in question, except before such authority (not being any such authority as is referred to in clause (b) of Article 329) or body and in such manner as may be pro vided for by or under any law made by Parliament and any such law may provide for all other "matters relating to doubts and disputes in re,lation to such election including the grounds on which such election may be questioned. (2) The validity of any such clause ( 1) and the decision of any authority or body under such law shall no~ be called in question in any court. referred to law as is (3) Where any person is appointed as Prime Minister or, as the case may. be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in clause (b) of article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such eloction may be called in clause in question under any such law as is (1). referred to ' I • J • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 58 9 ( 4) No law made by Parliament before the commence ment of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1) to either House of. Par- liament and such election shall not be deemed to be v01d or ever to have become void on any ground on which such elec tion could be declared to be void or has, before such com mencement, been declared to be void under any such law and notwithstanding any order made by any Court, before such commencement, declaring such election to be void, such elec- tion shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no .effect. (5) Any appeal or cross appeal against any such order of any court as is referred to in clause ( 4) pending immediately 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) . ( 6) The provisions of this article shall have effect not withstanding anything contained in this Constitution". A B c D Counsel for both sides are agreed that, for the purposes of the case -.before us, we need not consider the Constitutional validity of clauses 1 to 3 of the newly introduced Article 329A of the Constitution. therefore, concern myself only with the constitutional validity of clause (4) of Article 329A of the Constitution. I will, E F Learned Counsel for the election-petitioner contended that the con stituent or amending power contained in Article 368 of our Constitution had been misused to achieve some purpose which was either outside the Article or which struck at the roots of the "basic structure" or "the essential features" of our Constitution. It was submitted that the amend ment is invalid on an application of the tests laid down by a majority of the 13 Judges who indicated certain basic and inviolable principles of our Constitution in Kesvananda Bharati's case (supra). It was con tended thafthe newly added Article 329A (4) of the Constitution, far from constituting a Constitutional law, which alone could be made under Article 368, did not even satisfy the tests of a law, inasmuch as it did G not lay down any general rule applicable to all cases of a particular class but was really designed to decide one particular election case, which is now before us for hearing, in a particular way. According to learned Counsel, the amending bodies had, under the guise of an exercise of constituent power, really decided a particular election dispute arbitrarily without following the elementary principles of juilicial procedure or .applying any intelligible norms or principles of justice either as a Court H of law would have done or as any body of persons entrusted with the duty to decide a matter justify or quasi-judicially could possibly have ·done. The assumption underlying this argument was that setting aside f A B c D E F G H 590 SUPREME COURT REPORTS [1976]' 2 S.C,R. the results of a judicially recorded judgment and order by declaring it void and the validation of an election held by a Courf of law to be in valid necessarily involves the adoption of a judicial or a quasi-judicial procedure if the results are to appear just and not violative of the basic principles of natural justice which must be held to be parts of the Rule of law .envisaged by our Constitution. What had been done by clause 4, accordmg to the learned Counsel for the election petitioner, was noth ing short of lifting and placing the elections of the first four dignitaries of State outside the range of questionability. before ·any authority what soever either in the past, present, or future. As the only election out of those of these dignitaries still in dispute at the time of the passing of the 39th Amendment was the election of the Prime Minister to House of the People, now, under consideration in the appeals before us, it was suggested that all this was done, wholly and solely, though in directly, with the object of validating the Prime Minister's election as a Member of the House of Representatives in 1971. It sought to place the Prime Minister and the Speaker in a separate class by themselves as candidates at a general election for the membership of the House of Re presentatives. It was urged that there could be no reasonable or logical nexus between the alleged objects of such a classification and the results inasmuch as a Prime It was urged that, of the amendment made. Minister holds the pivotal position in the governance of the country, there could not be a less and not more need to ensure that the election of the holder of such a high office to a Parliamentary seat had been free It was urged that the test and the proce from any corrupt practice. dure for determining whether the holder of such an exalted, responsible, and important office was duly elected as a Me11_1.ber of Parliament could not, logically or reasonably, be different from that which ordinary Mem bers of the Parliament had to go through. It was pointed out that, in a case covered by this clause, there could be no consideration at all, if the amendment is upheld, of th,e validity of a past election by any authority in the future as all elections in this very special and exceptional class had been validated without any qualification and quite unconditionally. The effect was, it was urged, that the present Prime Minister was placed in a very privileged and exalted position which was not enjoyed by a past Prime Minister and which was not meant to be occupied by any future Prime Minister. Such a procedure and such a result, it was con tended, made a mockery of the concept of free and fair elections under a democratic system. Furthermore, it was urged that it was destructive of the concepts of rule of law, of equality before law, and of just deter mination of judicially triable dispute. Taking away of even the super visory jurisdiction of superior Courts in elections of a certain class of dignitaries was characterised as a gross violation of a basic principle of oii'r Constitution. It was also submitted that, if what was intended to be conveyed by the amendment was that Parliament had withdrawn the case before us from the sphere of judicial scrutiny and determination and had decided if itself, as was stated in his opening address by the learned Counsel for the original respondent, not merely was the basic constitutional principle of separation of powers set at naught but the primordial rule of natural justice, that no one should be a Judge in his own came, had been i,nfringed inasmuch as the dispute was really bet ween a majority party and the numerically minority groups or parties in the Houses of Parliament. No hearing could be given to leaders of the ; J SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 591 numerically minority groups, of parties in Parliament because they were, it was submitted, illegally detained under Preventive Detention laws after a declaration of emergency by the President of India, with result that members of Parliament who did not support the ruling party were denied access to Courts so as to secure their release from detention and could not take part in proceedings which produced the Acts I have already amending the Act of 1951, and, the 39th Amendment. dealt with and rejected the objection to the proceedings of the Houses of Parliament, on the collateral ground of allegedly iller:1l detentions of opposition leaders. the "basic structure" or All the contentions of learned Counsel for the election-petitioners, apart from the aileged procedural defect in amending the Act of 1951 and the Constitution when a number of opposition Members of Parlia ment are detained under the Preventive Detention laws, already dealt with by me, seemed directed towards producing two results either simul taneously or alternatively : firstly, to pursuade us to hold constituent power had been exceeded or sought to be utilised for extra neous purposes falling outside the purview of Article 368 of the. Consti tution altogether; and, secondly, to convince us that the effects of the 4th clause of Article 329A must be such that, if this purported addition to the "basic our Constitution was upheld, features" or "the underlying principles" of our Constitution will be irreparably damaged so that it could not any longer be looked upon as the same Constitution. Kesvananda Bharati's case (supra), which was binding upon us, will in the compel us to invalidate clause ( 4) of Art. 329A. There was, course of arguments, considerable overlapping between tests and con siderations appertaining to the purposes and those involving the effects, consequences, or implications of clause ( 4) if it was upheld. It was proposed that purposes should be ascertained and their validity deter mined, inter-alia, in the light of the consequences and implications of upholding the validity of the impugned clause. Both sets of conten tions involved a definition of the scope of Article 368 and a determina tion of the exact nature of the function actually performed by the con ( 4) of Article stituent authorities in passing the 329A. that the majority view impugned clause It was submitted We have heard the learned Attorney General and the learned Solici tor General of India, in defence of the 4th clause of Article 329A sought to be added by the 39th Amendment, as well as Mr. A. K. Sen and Mr. Jaganoath Kaushal, learned Counsel for the original respondent, who also supported the validity of the impugned clause. The 1st contention of the learned Counsel seemed directed towards inducing us not to 109k beyond the language to c;liseover the purposes or the nature of the furn: tion performed in passing clause ( 4) of Article 329 or its effects. This contention had necessarily to rest upon the assumption that provisions of clauses (4) and (5) and (6) of Article 329A. sought to be intro duced by the 39th Amendment, were valid and had the effect of dep riving this Court of jurisdiction to determine the validity of clause ( 4) by ex:Ploring the purposes and objects which may lie behind the plain rneanmg of clause ( 4). Our difficulty, however, is that even an attempt to give its natural and literal meaning to every word used in Clause ( 4), B c E F' G- H A .B ·C E 1I 5 92 SUPREME COURT REPORTS [J '.)76] 2 S.C.R. t after llearing the statements made by learned Counsel supporting 39th Amendment, to the effect that Parliament had itself examined the validity of whatever order and findings on question of fact or law arc referred to there, and had reached the conclusion that the order and each of the findings of fact on which it was based must be adjudged to be void and of no effect, baffles us very much. This could only mean that Parliament, in its constituent capacity, had functioned as though the High Court it w11s a direct Court of Appeal from a judgment of while an appeal in the last Court is pending -a procedure which has not been shown to have been followed so far in any case brought to our notice either decided in this country or anywhere else in the world, all the cases cited to support such a view being distinguishable on facts and law applicable. .. , the High Court, as these were all available to it. In, the circumstances of tbis case, set out above, findings on contested questions of fact and law and the order indicated by cla·use ( 4) could only be those contained in the judgment under appeal by both sides before us. The language of clause ( 4) was, according to the submissions of learned Counsel supporting the aIQendment, itself meant to convey that, after going into the disputed questions of fact, the con stituent bodies had reached the conclusion that the order and the find ings must have no legal effect. Indeed, the Solicitor-General went so far as to submit that Parliament must be deemed to be aware of . the contents of the whole record of the proceedings in the High Court, in duding the pleadings, the evidence, and the findings in the judgment of In other words, we must imagine and suppose that, whatever may be the actual position, Parliament had sat in judgment over the whole case as a Court of appeal would have done. But, the impugned clause (4), if valid, would com pel us to make a contrary assumption inasmuch as it declares that all Jaws prior to the 39th Amendment, relating to election petitions aml "matters connected therewith'', which must include the grounds given in Section lOO of the Representation of the People Act, 1951, were neither to be applied nor ever deemed to have applied to such a case as the one before us. This surely meant that they must be "deemed" not to have been applied by Parliament itself, according to the well known rule of construction that a legal fiction, introduced by a deeming provi sion, must be carried Jo its logical conclusion and we must not allow our imagination to boggle at the consequences of carrying the fiction to its logical conclusions (See : East and Dwellings Co. Ltd. v. Finsbury Borough Council(!). At the same time, it was contcnded, and, this was especially em phasised by Mr. Jagannath Kaushal, that Parliament and the ratifying legislatures of the States-participating in the constitution making pro cess-had not applied any pre-eidsting norms but had merely declared and registered, almost automatically, without any need to consider any thing further or to apply any law whatsoever to any facts, what followed from the abrogation of all pre-existing law, with its' procedure and norms, so far as the election-petition against the original respondent was concerned. This meant that the constituent bodies, proceeding on the - - · · · - - (!) [1952] A. C. p. 109. J SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 593 assumption that the High Court had rightly held the original respon dent's election to be invalid by applying the provisions of the 1951 Act, nad considered it i:.ecessary to validate what really was invalid accord ing to the l 951 Act. In view of what I have already held on meirts, such an as& ~mption, if it was there at all, could only be based on a mis conception. A The conflicting points of view, advanced in support of the amend ment, enabied the election-petitioner's counsel to find support for his contention that the impugned clause ( 4) obviously meant that a con sidered judgment on, inter-alia, disputed questions of fact, however, erroneous, had been swept aside, quite unceremoniously, mechanically, and, without a semblance of a quasi-judicial procedure, by a purported exercise of wnstituent power by the constituent bodies, consisting of the two Houses of Parliament and the ratifying legislature-s of the various States. H:: urged that the alternative contentions of Mr. Kaushal consti tuted an admission that no procedure whatsoever, which could be con siderer! eith,~r reasonable or appropriate for a judicial or quasi-judicial cic1cr111;!iau0n of any question of fact or law was followed. He con tended tha~ whichever of the two alternative contentions of counsel sup porting the 39th Amendment was accepted by us, his submission, that the amendment was ultra-vires, arbitrary, and improperly motivated was made out. The essence of judicial or quasi-judicial function is the application of a law which is already given by the law making authority to the judi cial or quasi-judicial authority to apply. This law has to be applied to certain findings after determining the disputed questions of fact in a manner which inust conform to the canons of natural justice. Learned Counsel for the election-petitioner contended that it was not necessary to go beyond clause ( 4) to reach the conclusion that what was being done to decide a dispute which could, under the law as it existed then, only be judicially determined iu the mode prescribed by Article 329(b) read with the Act of 1951 which could not be circumvented even before Article 329A engrafted exceptions on it and the Act of I 951 had been repealed retrospectively in its application to the Prime Minister. The result of a sort of consolidated legislative-cum-adjudica tory functi011 was sought to be embodied in Article 329A ( 4) by pur ported Constitutional amendment. He contended that we were bound to co'lsidc• and decide whether the "constituent power" contained Article 368 of the Constitution was meant to be used in this manner.. Such use would, he submitted, fall outside Article 368. Hence, he subll!-itted,_ there was no need to resort to principles emerging from a cons1derat1on of what may be spoken of as the basic structure or essen tial features of the Constitution. It was enough if we held that "consti tuent power" did not cover such a use made of it. Learned Counsel for the election-petitioner had thus advanced an alternative contention based upon the meaning of the term "constituent power" introduced by the 24th amendment; and, in my opinion, we are duty bound to interpret Article 368 and determine the precise meaning of "constituent power" Indeed, when properly called upon by a party before us to do so. the very contention that we should so construe "constituent power" as to deny ourselves the ji:risdiction to decide the validity of what was G D E F G H ·. A B c D E F G H ' 594 SUPREME COURT REPORTS [1976) 2 S.C.R. done under a purported exercise of such a power involves a determi I fail to see how our jurisdiction to do this nation of its meaning. could be barred by the provisions of the very amendment whose consti tutional validity is challenged before us. Learned Counsel supporting the 39th Amendment, had, in defence of the· Amendment, advanced arguments which go beyond the position which was adopted to suppoft the amendments considered by us Kesvananda Bharati's case (Supra). The new argument now advanced, to use the language of the Solicitor General in his last written submis sions, is that "the power of amendment under Article 368 is "the very original power of the people which is unbroken into the legislative and the executive and the judicial". He submitted that the implied limita tions, to which the majority decision in Kesva.nanda Bharati's case (supra) has committed this Court for the time being, are no longer available when considering this "unbroken" power. Mr. A. K. Sen learned Counsel for the original-respondent, puts this very argument in the following words in his written submissions : "In the hands of the constituent authority there is no demarcation of powers. But the demarcation emerges only when it leaves the hands of the constituent authority through well defined channels into demarcated pools. The consti tuent power is independent of the fetters or limitations im posed by separation of powers in the hands of the organs of the Govt., amongst whom the supreme authority of the State is allocated. ~' The constituent power is independent of the doctrine of separation of powers. Separation of powers is when constitution is framed laying down the distribution of powers in the diffei:ent organs such as the legislative, executive and the judicial power. The constituent power springs as the fountain head and partakes of sovereignty and is the power which creates the organ and distributes the powers. There fore, in a sense the constituent power is all embracing and is at once judicial, executive and legislative, or in a sense super power. The constituent power can also change the system of checks and balances upon which the separation of power is based". The theory advanced before us may have been designed to escape the logical consequences of the majority view in Kesvananda Bharati's case (supra) which we cannot, sitting as a Bench of five judges in this Court, overrule. The theory is, however, quite novel and has to be, I think, dealt with by us. It postulates an undifferentiated or amorphous amalgam of bare power constituting the "constituent power". Accord ing to this theory, the power which constitutes does not need to be either constituted or prevented from exercising a power assigned by it already to a constituted authority. Hence, it is a power of a kind which If I am not mistaken, the learned Soli is above the constitution itself. citor General did say that the constituent power !~es "outside" ,• SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 595 Constitution. In other words, it is independent and above the Constitu tion itself because it operates on the Constitution and can displace. it with so to· say, one stroke of its exercise. I do not think that such an extr~me theory could be supported by the citation of either the majo rity or minority views of Judges, barring stray rcmar.ks ,made in oth~r contexts, either in the I. C. Golaknath v. State of Pun1ab s(<1) case or m the Kesvananda Bharati's case (supra). In fact, in neither of these two cases was the question raised or considered at all by this Court whether the amending power or the "Constituent power" itself constituted such an amalgamated concentration of power, said to be distributed by the Constitution between the three different organs of State at a "subsequent stage" whatever this may mean. The distribution of power of different kinds between the three organs was compared to delegation of au~ority to agents which could be withdrawn at any the constituent bodies. time by A B c If we were to accept the theory indicated above, it would make it unnecessary to have a constitution beyond one consisting of a single · sentence laying down that very 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 D whenever they please whether such powers be executive, legislative, or judicial. Could .this be the ambit of "constituent power" in our Consti tution ? Would such a view not defeoat the whole purpose of a Constitution ? Does the whole constitution so crumble and melt i•n the crucible of constituent power that its parts cannot be made out ? Before we could accept a view which carries such drastic implications with it we will have to over-rule the majority view in Kesvananda E Bharati's case (supra). The majority view in that case, which binding upon us, seemed to be that both the supremacy of the Consti tution a1ud separation of powers are parts of the basic structure of the Constitution. F If "constituent power", by itself, is so transcendental and excep- tional 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). I have not found any opinion expressed so far by any learned Judge of this Court to show that the consti- tuent power is not bound by the need to follow the procedure faid down in Article 368(2) of the Constitution. Indeed, rather in consistently with the theory of an absolute and u'uquestionable power in some undifferentiated or raw and unfettered form, operating from G above and outside the Constitution, learned Counsel, supporting the impugned 4th clause i'.1 Article 329A, concede that the constituent power is bound by the appropriate procedure laid down in Article 368 for the amendment of the Constitution. What they urge that, subject to this procedure, which has been followed here, constit1i1ent power cannot be questioned because it is a "sovereign power." the majority view in Kesvananda Bharati's case (supra) was erroneous. The logical cO'i1sequence of such an argument also is that H ---~----~· (1) [1967] 2 SCR 672. (2) [1973] Supp. ro SCR Pl A B c D E F G H 596 SllPRE~IE COURT REPORTS [1976) 2 S.C.R. is· It also overlooks that judicial review of laws made by Parliament It may be always a review of an exercise of "sovereign power". extraordi- that the object of the learned Consel in advancing nary tbeory was to induce us to refer this case to a much larger bench so that the majority view in Kesvananda Bharati's case (supra) may, I, however, doubt whether puttrng for if necessary, be overruled. ward such extreme and untenable propositions is the best method of securing such a result. indicated I think that the possibly theoretical question above, whatever may be the object of raising it, does deserve Lo be seriously considered and answered by us because it discloses a basic misconcep tion. Therefore, I propose to consider it at a length which seems to me to be justified by our need to clarify 0ur thinh1g on a basic or "key" concept without a final commitment to a particular view on it. Clearer thinking, by examining a basic theoretical question from every conceivable angle, leads, I believe, to that open mindedness which needed by lawyers no less than by any other class today so that we may, contrary to our reputation, be responsive to the inevitable chal lenges of change. Justice Holmes once said : "Theory is the most important part of the dogma of law, as the architect is the most im portant man who takes part in the building of a house" (Holmes, Collected papers (1921 ) 200) . It seems to me that the words "sovereignty" and "sovereign power", used repeatedly by learned Counsel defending the 39th Amendment to describe the constituent power, should, for several good reasons, be avoid~d, so far as possible, by lawyers who seek that clarity of thought for which precision in language is the first requirement. One of these reasons was given by Lord Bryce (Studies in "History and Juris prudence") (1901) (503-504). "The frontier districts, if one may call them so, of Ethics, of Law, and of political science have been thus fafested by a number of vague or ambiguous terms which have produced many barren discussions and caused much needless trouble to students. No offender of this kind has given more trouble than the so-called 'Doctrine of Sovereignty' ". Prof. Mellwain, however, opined : "But this very fact is proof of its vital importance in our modern world, and the wide variety of the views held concerning its essence, as well as the conflicting conclusions to which these views still lead, may furnish sufficient excuse for another attempt to clarify some of our ideas touching this central formula under which we try to rationalize the complicated facts of our modern political life". Another reason for eschewing such expressio'as, so far as possible, is that they are "emotive" or of a kind about which Mr. Leonard Schapiro, (writing on "Key concepts in Political Science" Series, at p. 7) rightly observed; "Emotive words such as 'equality,' 'dictator- ship,' proper under- be, standing of or should not be, or have been used. Confucius regarded the rectifi 'If names are not cation of names' as the first t•ask of government. correct, language will not be in accordance with the truth of things', passiom which in which raise, obscure , a are~ or should 'power' often, 'elite' ' 1 • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 597 and this in time would lead to the end of justice, to anarchy and war". At any rate, in America, the concept of State Sovereignty, ranged against· that of riational sovereignty, did produce a civil war which is said to have been precipitated by the decision of the Ameri- can Supreme Court in Dred Scott v. Sandford (1). to A I must preface my observations here about the concepts of I B The C "sovereig,1ty" and exercise of "sovereign power", between which make a distinction, with two kinds of explanation. The first kind involves an exposition of a functional or sociological point of view. I believe that very social, political, economic, or legal concept or doctrine must answer the needs of the people of a country at a parti I see the development of co·acep~s, doctrines, and insti cular time. tutions as responses to the changing needs of society in every country. They have a function to fulfil in relation to nutional needs. second type of explanation may be called historical or meant merely to i'adicate and 'illustrate notions or concepts put forward by thinkers at various to appropriately in various countries so as relate them to what we may find today under our Constitution. We have to appreciate the chronology or stages of their development if we are to avoid. trying to fit into our Constitution something which has no real relevance to it or bearing upon its con~e'ats or which con- D flicts with these. It must not. if I mav so put it, be constitutionally .. Indigestible" by a constitution such as ours. Of course, it is not a secret tll'llt we have taken some of the basic concepts of our Consti tution from British a'nd American Constitutions in their most developed That too must put us on our guard against attempts to foist stages. upon our Constitution something simply because it happens to be either a British or American concept of some particular period which E could not possibly be found in it today. Therefore, both types of explanation appear to be necesmry to a'11 exposition of what may or may not be found in our Constitution. · I certainly do not think that Judges of this Court have or should think 'that they have the power to consciously alter, under the guise of judicial interpretation, what the Constitution declares or necessarily implies ewa though our pronouncements, interpreting the Constitu tion, n.iay have the effect of contributing something to the growth or even change of Constitutioml law by clearing doubts, removing un If the law em certainties, or filling up of gaps to a limited extent. bodied fo our Constitution, as declared by this Court, is not satisfac tory, I do not thi'nk that we can or should even attempt to stand in the way of a change of any kind sought through appropriate consti tutional means by the constitutionally appointed organs and agencies If, however, this Court is asked to declare as valid what of the State. seems to it to fall clearly outside the ambit of the Constitution, and, indeed, what is even claimed to be operatrag from outside the Consti tution and described as a supra-Constitutional power, there may be no alternative left to it except to declare sucn a claim to be really out If we were to do that we would only be .ac side the Constitution. cepting the professed basis of the claim without conceding its consti- F G H ... (1) (1856) 19 How. 393. 17-12GSCT/76 i; A B c D E F G H 598 Sl.'l'REME COURT REPORTS [1976] 2 S.C.R. tutional validity. After all, we are really concerned with the ques tims of constitutional validity which can only be resolved by referen ces to what the Constitution contains, either expressly or by a neces sary implication, and not with what is beyond its range except in so far as this also may be necessary to explain what is or what is deemed to be a part of our Constitution. The term "sovereign" is derived from the Latin word "Superanus" which was taking "Suzerian" suggesting a hierarchy of classes which In its origin, it is an characterised ancient and medieval societies. attribute assigned to the highest living human superiors in the political hierarchy and not some abstract quality of a principle or of a law con tained in a document-a meanrag, as will be shown here, which emer In times of anarchic disorder or oppression, by ges clearly later. local satraps or chieftains or barons or even bullies and criminals, ordinary mortals have sought the protection of those who could give it because of their superior physical might. No book or document could provide them with the kind of help they needed. They looked upto their "Sovereign liege a•ad Lord", as the medieval monarch was addressed by his subjects, for protection against every kind of tyranny and oppression. The Greeks and Romans were not troubled by theqries of "Sove reignty" in a State. The principle that Might was Right was recog nised as the unquestioned legally operative' principle at least in the field Greek 1ihilosophers had, however, of their Constitutional laws. formulated a theory of a Law of Nature which was, morally, above the laws actually enforced. In later stages of Roman Law, Roman jurists also, saturated with Greek notions of an ethically superior law of Nature, said that the institution of salvery, which gave the owner of a slave theoretically absolute powers of life and death over slave, just like the powers of a pater-familias over his children, was CO'atrary to jus naturale although it was recognised by jus gentium, the· laws of then civilised world. Aristotle, in his analysis of forms of government, had emphasized the importance of the Constitution of a State as a test or determinant of sovereign power in the State. And, Roman jurists, had, indirectly, cleared the path for the rise of modern legalism and constitutid,1alism by rescuing law itself from the clutches of a superstitious reverance for customs, surrounded with ceremonial and ritualistic observances and cumbersome justice defeating forma lism, through fiction and equity, and forged a secular and scientific weapon of socio-economic transformation. All this was very useful i11 preparing for an age in which secular law could displace religion as the "control of controls" (See : Julius Stone's "Province & Func tion of Law", 1961 End. p. 754, 767). Romans not only clarified basic notions but developed a whole armoury of new forms in which law could be declared or made; Lex Plebiscitum; Magistratuum Edicta: Senatusconsulta; Responsa Pru.den tium; Principum Placita. The last mentioned consisted of orders of Roman Emperors which were of various kinds, some of general SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 599 .application to cases of particular kinds and others for particular indi vidual cases : Edicta; Decreta, Mandata, Rescripta. They had the "force of law" or "Lex" which could be roughly equated with our "Decreta" were issued as decisions on individual statutory law. disputes, in exercise of the Emperor's power "under" the authority of "Lex de Imperio", although "in the classiC'al period it was firmly established that what the Emperor ordained had the force of law" (See: R. W. Leage on Roman Law, Edn. 1961 p. 32) The point to note is that, even in the embryonic 5tages of government through legislation Jaw-maktag and decision of individual cases are found dis tinctly separate. After the break-up of the Roman Empire, there were attempts in medieval Europe, both by the Church and the Kings, to develop spiri tual a»1d temporal means for checking wrong and oppression. Quests for the superior or a sovereign power and its theoretical justifications by both ecclesiastical and Jay thinkers were parts of an attempt to. meet this need. The claims of those who, as vicars of God on earth. sought to meddle with mundane and temporal affairs and acquire even political power and influence were, after a struggle for power, which took differe11t forms in different countires, finally defeated by Euro Indeed, these Kings tried pean Kings with the aid of their subjects. to snatch, and, not without success, to wear spiritual crowns which the roles of "defenders of the faith" carried with them so as to surround themselves with auras of divinity. The theory . of a legally sovereign unquestionable authority of the King, based on physical might and victory in battle, appears have been developed i11 an.cient India as well, by Kautiliya, although the concept of a Dharma, based on the •authority of the assemblies of those who were learned in the dharmashastras, also competed for control over exercise of royal secular power. High philosophy and religion, however, often seem to have influenced and affected the ac tual exercise of sovereign power and such slight law-making as the King may have attempted. The ideal King, in ancie,1t India, was conceived of primarily as a Judge de.ciding cases or giving orders to meet specific situ<itions in acco~dance with the Dharma Shastras. It also appears. that the actual exercise of the power to administer justice was often delegated by the King to his judges in ancient India. Indeed, according to some, the theory of seP'arat,io1,1 o.f powers appears to have been carried so far. (See : K. P. Jayaswal in "Manu and Yajnavalkya" -A basic History of Hindu Law-1930 Edn. p. 82) that the King could only execute the legal sente1we passed by the Judges. We know that Semetic prophets, as messengers of God, also be came rulers wieldiug both spiritual and political .temporal power and authoritv although to Jesus Christ, who never sought temporal power, is ascr:ibed the saying : "re'ader unto Caesar the things that are Caesar's and onto God things that are God's". According theory embodied in this saying, spiritual arid temporal powers and authorities had in d,ifferent orbits of power altogether. Another theory, however. was that the messenger of God had given to operate A B c D E F G H • - • A \ A B C D E F G H 600 SUPREME COURT REPORT'S [1976] 2 S.C.R. the sovereign will of God Almighty which governed all matters and this could not be departed from by any humfil1 authority or ruler. In the practical administration of justice, we are informed, Muslim caliphs. acknowledged and upheld the jurisdiction of their Kazis to give judg ment against them personally. Caliph Omar, being a defendant in a claim brought by a jew for some money borrowed by him for purposes of State, appeared in person in the Court of his own Kazi to answer the claim. The Kazi from his seat out of respect for the Caliph who was so displeased with this unbecoming conduct that he dismissed him from office. [See : Sir A. Rahim's "Muhammadan Jurisprudence" (1958) p. 21]. There is an account of how The theory, therefore, that there should be a separation of func tions between the making of laws, the execution of laws, and application of laws, after ascertaini'ng facts satisfactorily, is not new. It is embedded in our own best traditions. if by nothing else, by common sernse and the principle of division labour, without an application of which efficient performance of any duties can not be expected. is dictated, It We may now look back at the theory a1ad practice of sovereignty in Europe. There, wise Kings, in the Middle ages, sought the sup port of their subjects in gatherings or "colloquia", which, in the words of Mr. De Jouvenel (See : "Sovereignty an Inquiry into the Political Good" p. 177), "had the triple character of a session of justice, a· council of State and the timid beginnings of a legislative assembly were the means by which the affairs of the realm came more and more into the hands of t)J.e King". He goes on to observe : "The council of the King and the Courts of justice progressively developed an independent life, the assembly remaining under the name of Pariia ment in Englaind and States-General in France." Bodin, writing in the reign of Henry the III of France (1551 to 1589), viewed sovereignty as an absolute unlimited power which, though established by law, was not controlled by it. According to him, under an ideal system, sovereignty was vested in the Ki>ng by The King's word was law. But, even according to divine right. Bodin, alth~ugh the Sovereign was free from the trammels of positive law, as he was above it, yet, he was "bound by divine law and the law of nature as well as by the common law of nations which embodies principles distinct from these" (See : Du•ming's "History of Political Theories : Ancient & Medieval" p. 28). Hobbes, a century later continued this line of thinking on an entirely secular and non-moral pla•ne. He opined : "Unlimited power and unfettered discretion as to ways and means are possessed by the sovereign for the end with a view to which civil society is constituted, namely, peace and escape from the evils of the State of nature". in which the life of individuals was "nasty, brutish, and short." Although, Hobbes visualised existence of a social compact as the source of the authority of sovereign, yet, he looked upon the compact only as a mode of surren der by the subjects of all their individual rights and powers to tbe sovereign who could be either an individual or a body of persons. 1 - - • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 601 Subjects, according to him, had no right to rely upon the compact as A a means of protection against the sovereign. He provided the fullest theoretical foundations of a Machiavellian view of sovereignty. As we know, in the 17th and 18th centuries, European monarchs came in sharp conflict with the represe'u.tatives of their subjects assem bled in "Parliament" in England and in the "States-General" in France. And, theories were put forward setting up, as against the claims of Kings to rule as absolute sovereigns by indefeasible divine right, no lesser claims to inviolability· and even divinity of the rights of people. But, theories apart, practice of the art of Government pro ves that the effective power to govern by the very nature of conditions needed for its efficient exercise, has had to be generally lodged one or few especially m times of crisis, but not in all those who re present the people even under democratic forms of Government. Direct democracy, except in small city States such as those of ancient Greece, is not practically feasible. The theory Theories of popular sovereignty put forward by Locke and Rousseau came to the fore-front in the 17th and 18th centuries of. an era of revolutionary changes a!,1d upheavels. certain immutable individual natural rights, as the basis of a set of positive legal rights, essential and necessary to th.e fulfilment of needs of human beings as individuals, was advanced by Locke. He visualised a social con.tract as a means of achieving the welfare of individuals composi',1g Society. He also advocated separation of powers of government in a Constitution as a method of securing rights of individual citizens against even their own Governments. Montes The ideas of Rousseau were amongst quieu elaborated this theory. those which contributed to produce that great confiageration, Fre~1ch Revolution, which was. described by Carlyle as the "bonfire of feudalism". Government, according to Rousseau, Departments, was the agent of the General will of the Sovereign people whose walfare must always be its aim and object. But, the General will for the time being was also liable to err about the parti cular means chosen to nchieve the ends of good Government. There :was, according to Rousseau, also another part of the "General Will" which was mort perma'aent and stable and unerring and decisive. He ·hinted that there was what Bosanquet (See : The Philosophical Theory of the State-Chap. V) called the "Real Will", the basis of which was found in Rousseau's philosophy. As p_qinted out by T. H. Green, in his Lectures on "Principles of Political Obligation" (1931 Edn. p. 82) Rousseau's theory of sovereignty was designed to bring out that : · "there's on earth a yet auguster thing, Veiled though it be, than Parliament and King." T. H. Green said : ''It is to this 'auguster thing', not to such supreme power as Er1glish lawyers held to be vested in Parliament and king', that Rousseau's account of the sovereign is really applicable." B c D E F G H A B c D E F G H 602 SUPREME COURT REPORTS ( 197 6) 2 S.C.R. The ideas of Rousseau were subsequently used by Hegelian and Idealist politi'<al philosophers to deify the State as the repository of the "Real Will" of the people and by Marxists tci build tht:ir theory of a dictatorship of the proletariat. But, the views of Lockt: and Montesquieu were sought to be givea a practical form by American.. Constitution makers, who imbued with them, devised a macilinery for ·the control of sovereign power of the people placed in the hands of Suspicion the three organs of State so tha~ it may not be misused. of Governmental power and fear of its misuse, which characterised liberal democratic thinking, underlay the doctrine of separation of powers embodied in the American Constitution. 'The merits of democracy'', according to Bertrand Russel (See : "Power : A new Social Analysis" p. 187) "are negative : it docs not insure good government, but it prevents certain evils". He pointed out t°' (at p. 188) : "It is possible, in a democracy, for the majority exercise a brutal and wholly unnecessary tyranny over a minority .... The safeguarding of mi•aorities, so far as is compatible with orderly Government, is an essential part of the taming of power'". He alse said (at p.192) : "Where democracy exists, there is still need safeguard individuals and minorities •against tyranny, both because tyranny is undesirable in itself, and because it is likely to breaches of order. Montesquieu's advocacy of the separation of legislative, executive, and judiciary, the traditional English belief in: checks and balances, Bentham's political doctrines and the whole of nineteenth century liberalism, were designed to prevent tlle arbitnry exercise of power. But such methods have come to be c0nsidered incompatible with efficiency." Some quite honest, upright, and intelligent people think that the: inefficiency, the corruption, the expense, the waste of tim<: and effort, and the delay in accomplishing what they regard as much too urgently needed socio-economic and cultural transformations of backward: peoples today, involved in treading the democratic path, are so great that they would readily sacrifice at least some of the democratic pro separation of cesses a'11d such safeguards against their misuse as powers and judicial review are meant to provide. They would not mind taking the risk of falling into the fire to escape from what they believe to be a frying pan. Some may even agree with Bernard Shaw, who lik,r,d to look at everything turned upside down m attempts tO' understand them, that Democracy, with all its expensive and time co',1suming accompaniments, is, even in the most advanced countries,. only a method of deluding the mass of the people into believing that they are the rulers whilst the real power is •always enjoyed by the few who must be· judged by the results they produce and not by their pro Others regard democracy as the only means of achieving fessions. the highest good and the greatest happiness of the greatest number. They consider its maintenance to be inextricably bound up with the preservation of the basic individual freedoms and a supporting mecha nism or structure of checks and balances, separation of powers, and judicial review. What some believe to be obstacles to any real pro gress are looked upon by others as almost sacred institut10ns essential • ... • < SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 603 for the protectia11 of their lives and liberties, hearths and h<Jmes, occu pations and means of liverlihood, religions, language~, and ~ultures. Inevitability of change is, according to some, the b~s1c a.nd i_nescap able law of all life, the only questions to be cons1dcrco t,emg pace and direction : how soon or how late and whether the change is to be for the better or for the worse ? "El Dorado'', some believe, lies ahead. Our march towards it, they say ,should be orderly and disciplined. · To others all change is anathema as it is generally for the worse. The Golden Age, some believe, lay in the past. Salva tion of mankind, they think, lies in a return to the ima&ined pristine virtues of that past. Some assert that certain ame"11dm;outs of our Constitution have "defaced and defiled" it (See : Mr. Palkhivala's "Our Constitution"). Others maintain that these very amendments have made our Constitution a more potent instrument of those socio economic and cultural transformations for which the Co.nstitution was designed (Sec: Dr. V. A. Seyid Muhammad's "Our Constitution for Haves or Have-nots"). Judges must, no doubt, be . impartial and independent. They cannot, in a period of intensified socio-economic conflicts, either become tools of any vested interests, or functions, from the bench, as zealous reformers propagating particular causes. Nevertheless, they cannot be expected to hav~ no notions whatsoever of their own, or to have completely blank minds on important questions indicated above which, though related to law, really fall outside the realm of law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically sealed chambers of purely legal logic artificially cut off from the needs of life around to which law must respond. Their differing individual philosophies, outlooks, and attitudes on vital questions, resulting from differences in temperament, education, tradition, training, interests and experiences in life, will often determine their honest choices between two or more reasonably possible interpre tations of such words as "amendment" or "constituent power" in the Constitution. But, on certain clear matters of principle, underlying the Constitution, no reasonable person could entertain two views as to what was or could be really intended by the Constitution makers. One of these matters, clear beyond the region of all doubt, seems to me to be that the judicial and law making functions, however broadly con ceived, could not possibly have been meant to be interchangeable. They are not incapable of distinction and differentiation, in any consti tutionally prescribed sphere of operation of power including that of "constituent power". Each has its own advantages and disadvantages and its own natural m'?dus operandi. A lamentable example of what took place in the course of English Constitutional history when a House of Commons, composed of very intelligent and learned people, one of whom, Holt subsequently be came a distinguished Chief Justice of England, took upon itself to sit in judgment on a decision of two Judges of the King's Bench Divi sion, one of whom was suspected of being a partisan of Royal prero gative and power at a time when a struggle for supremacy between, the competing legal claims of the King, as the titular sovereign, and those of the House of Commons, as representing the people, was still going A B c I> E F G H 604 SUPREME COURT REPORTS [1976] 2 S.C.R. A In strict law, which was unwritten, the position on that problem on. of power was not quite clear at that time. The episode is thus des cribed by Lord Denman, C.J., in Stockdale v. Hansard(1') (at p. 1163) : imprison to arrest and their serjeant-at-arms, "The next case to which I advert in truth embraced no question of privilege whatever; but, as one of the highest authorities in the State has thought otherwise, I shall offer some comments upon it; I mean Jay v. Topham (112 How St. Tr. 821). The House of Commons ordered the defen dant, plaintiff for having dared to exercise the common right of all Englishmen, of presenting a,petition to the King on the state of public affairs, at a time when no Parliament existed. For this imprisonment an action was brought. The declara tion complained, not only of the personal t~espass, but also of extortion of the plaintiff's money practised by defendant under colour of the Speaker's warrant. The plea of justifica tion under that warrant, which could not possibly authorise the extortion, even if it could the arrest, was over-ruled by this Court, no doubt with the utmost propriety, for the law was clear; Lord Ellenborough points this out in the most for~ cibly manner, in 14 East, 109. Yet for righteous judgment C.J. Pemberton and one of his brethren· were summoned before the Convention ~rliament, when they vindicated their conduct by unanswerable reasoning, but were, notwithstanding, committed to the prison of Newgate for the remainder of the session. Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those acts of arbitrary power for which It gave me real they deprived King James of his Crown. pain to hear the Attorney-General contend that the two Judges merited the foul indignity they underwent, as they had acted corruptly in concert with the Duke of York. In support of this novel charge, he produced no evidence, nor any other reason but that the plea, as set out .in Nelson's Abridgement( a), appears to have been in bar, and .not the .Commons, who knew their own motives, made no such charge : the record produced there, on law, exhibits a bad plea for the reasons assigned by Lord Ellcnborough; and the judgment punished by the Commons could not have been different without a desertion of duty by the Judges." the jurisdiction. But [(a) 2 Nels. Abr. 1248. The plea there is that pleaded, not in Jay v. Topham, but in Verdon v. Topham, See 14 East, 102 note (a) .J In Stockdale v. Hansard (supra) the action of the House of Com mons on Jay v. Topham (supra), was practically declared to be ille gal or unconstitutional for arbitrariness. The sovereign British Parlia ment, however, did not alter but has acquiesced in the law as stated (l) 112 English Rep. 1112@ 1163. B c D E F G H - • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 605 by Lord Denman who pointed out, by reference to a number of prece- A dents, that Common Law Courts had continuously been determining questions relating to the very existence of an alleged privilege and defining its orbit on claims based on the ground of a Parliamentary privilege. And, English Courts have gone on doing this unhesitatingly after Stockdale v. Hansard (supra), just as they had done earlier, as a part of their function and duty to interpret and declare the law as .it exists. B Let me go back a little further to the time when another _Engli~h ·Chief Justice, Sir Edward Coke who on being summoned, with bJS brother Judges, by King James the 1st, to answer why the King could not himself decide cases which had to go .before his own Courts of Justice. asserted: " .... no king after the conquest assumed to himself to give any judgment in any cause whatsoever, which concerned the administration of justice within this realm, but these were solely deter mined in the Courts ofJustice". When the king said that "he thought the law was founded on reason, and that he and others had reason, as well as the Judges'', Coke answered : "True it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes 0£ his subiects, are not to he decided by natural reason, but by the artificial reason and judgment of the law,. which law· is an act which requires long; study and experi ence, before that a man can attain to the cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects; and which prot·3cted his Majesty in safety and peace." (The "Higher Law" background of American Constitutional law by Edward S. Corwin p. 38-39). ' We know that Coke even advanced the claim, in Bonlzam's('1) case, that Courts could invalidate acts of Parliament if they contra- vened rules of natural justice such as that a man shall not be heard before he is condemned or that he should be a Judge in his own cause. As Ivor Jennings points out, in an appendix to "The law and Constitution" (5th Edn. 1959 p. 318) the theory of Parliamentary sovereignty or supremacy· could, by no means, b3 said to be firmly established in England in Coke's time. Blackstone, while enunciating the theory of Parliamentary sove reignty in the 19th century, as it was to be later expounded in the 20th century by Prof. A. V. Dicey,, also claimed superiority for "the law of nature which was common to all mankind". · He said about this law: c D E F G "It is binding over all the globe, in all countries, and at ali. times : no human laws are of anv validity if contrary to This; and such of'them as are valid derive all their force and H (I) (1610) 8 Co. Rep. 118. A B c D E F G H 60 6 SUPREME COURT REPORTS [1976] 2 S,C,R~ all their authority, mediately or immediately, from this origi nal;" (See : Dicey-Law of the Constitution p. 62). It is a matter of legal and Constitutional history that English Judges finally rejected claims based upon vague philosophical concepts or upon a law of nature or appeals to the "yej auguster thing" pitted against statutory law excegt in so far as certain rules of natural justice and reason could impliedly b~ read .into acts of Parliament due to absence of statutory prohibition and the need to observe them having regard to th·~ character of the function required by a statute to be performed. Constitutional historians, such as Holdsworth, have pointed out how English Common Lawyers, some presiding as Judges over King's Courts of Justice, others sitting in Parliament as Legislators, joined hands to· evolve., sustain, and give life to principles of "Sovereignty of Parlia ment" and the "Rule of Law" as understood by them. Dicey asserted, in his "Law of the Constitution", that both these principles so operated as to reinforce each other instead of comini? into conflict with each other. One wonders whether this could be ~said of later times when the need for more rapid transformations of social and economic orders, in an effort to build up a welfare State in Britain, led to serious cur-· tailments · of what were at one time considered natural and inviolable rights and to adoption of legislative devices such as Henry VIIIth clause. We know that these developments evoked a powerful protest from a Chief Justice of England, Lord Hewart, who wrot·~ a book on the subject : "New Despotism". Today, however, it cannot be said that th·~ Courts of Justice in England do not see the implications of a welfare Socialistic State which may demand the curtailment of Jibertie'> of subjects in many directions in order that the substance of demo cratic freedom, only attainable through removal of economic, social, and educational disl)arities and barriers, may be attained. Willis, dealing w.ith the development of American Constitutional Law, wrote about the claim of Coke, mentioned above, to invalidate Acts of Parliament by reference to certain fundamental principles of natural justice and of common Jaw (See : Willis on Constitutional' Law-Edn. 1936 p. 76) : ''This dictum of Coke, announced in Dr. Bohrnan's case ( 1610), 8 Co. Rep. 11 SA) was soon repudiated in England, but the doctrine announced in Coke's dictum found fertile soil in the Unit·~d States and sprouted into such a vigorous l!rowth that it was applied by the United States Supreme Court in the decision of cases ~orning before it; and it has been said that the doctrine of the supremacy of the Supreme Court is the logical conclusion of Coke's doctrine of control of the Courts over leg)sla ti on". It seems to me that judicial review of all law making,, whether it appertains to th-::: sphere of funrlamental law or of ordinary law, is traceable to this doctrine of judicial control by reference to certain • • • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 607 basic principles, contained in a Constitution' and c~nsidere_d t?o in It may be that this doctrm~ 1s l!n violable to be easily alterable. suitable for our country at a time when it is going through rapid _soc1~­ economic transformation. Nevertheless, so long as the doctrine 1s found embodied in our Constitution, we can.not refuse to recognise it. Jn America there was some doubt whether the doctrine of judicial review of all l~gislation naturally flowed out of the vesting of judicial power by Sectio'Il 1 of Article 3 of their Constitution which says : B c "The judicial power of the United Stat-es shall be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish ... (Willis on Constitutional Law-p. 1020). Then.~ is no c:.i-ticle there, like Article 13 of our Constitution, which declared any kind of legislation abridging or taking away fundamental It was rights to be "void". The doubt was not without substance. removed by Chief Justice Marshall whose judgment in Marbury v. Madison('), firmly established the doctrine of judicial review and the supremacy of the Supreme Court of America, in the judicial field of interpretation, as the mouthpiece of the Constitution, and, therefore, of the "Real Will'' of the people themselves. The Constitution,, as the basic or fundamental law of the land, was to operate there as the touchstone of the validity of ordinary laws just as the validity of laws made by British colonial legislatures was tested by refere.nce to the parental Act of the British Parliament. Under our Constitution, by Article 141 of the Constitution, power is vested only in the Supreme Court and in no other organ or authority of the Republic to declare the law "which sha]J be binding on all Courts within the territory of India". Section 143 of the Constitution of India also shows that whenever questions of fact or law have either mi sen or are likely to arise, the President of India may, in view of their public importance, seek the opinion of the Supreme Court, by a reference mad·e to the Court. The procedure on such a reference is that of a Judicial authority which hears those interested and then gives its opinion .. Article 32 of the Constitution gives a wide power to the Supreme Court "to issue dir-ections or orders or writs", which is larger than· that of the British Courts issuing prerogative writs, although it is c~nfined to the en~orcemirnt of the rights conferred by part 3 dealin'! with fundamental nghts. The power of the High Courts of the various States under Article 226 of the Constitution to issue appropriate direc tions., orders, or writs "to anv p'erson or authority includin'! in appro priate cases any Government": within the territories under its juris diction. extends to "any other purpose", that is to say, to purposes other than enforcement of fundamental rights. Article 227 also con tains the power of a High Court to superintend the functioning of "all, Courts and Tribunals" within its jurisdiction. These powers of the High Courts are subject to appeals to the Suoreme Court which is also a repository of a special jurisdiction uode-r Article 136 to grant special_!eave to appeal "from any judgment, decr.:!e, determination; (!) (1803) Cranch 137. ; ·608 SUPREME COURT REPORTS [1976] 2 s.c.R. sentence or . or~er ~n any ca~se or matt.er passed or made by any Court or Tribunal Ill the territory of India". It is true that there is no mention ~r vesting of judicfal _Power, as __ such,, in the Supreme Court by any Article of our Constitution, but, can it be denied that waat vests in th~ S1:1preme Court and Hi~ Courts is really judicial power ? The Constituti<;n undoubtedly specifically vests such power, that is to say, power which can properly be described as "judicial power", only in the Supreme Court and in th~ High Courts and not in any other bodies or ~u~orities, whether executive or legislative, functioning under the Const1tut10n. Could such a vesting of power in Parliament have been omitted if it was the intentfon of Constitution makers to clothe it also with any similar judicial authority or functions in any capacity whatsoever ? · The claim, therefore" that an amalgam or some undifferen,tiated residue ~f 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 Consti tution whatsoever, whether substantive or procedural. Attempts arc made to infer such a power from mere theory and speculation as to the nature of the "Constituent power" itself. . I do not think that, because the c-0nstituent power necessarily carries with it the power to constitute judicial authorities, it must also, by implication, mean that the Parliament,, acting in its constituent c!apacity, can. exercise the judicial power itself directly without vestingi it in itself first by an amendment of the Constitution. The last mentioned objection may app-~ar to be procedural only, but, as a matter of correct interpreta tion of the Constitution, and, even more so, from the point of view of correct theory and principle, from which no practice should depart without good reason, it is highly important. This impels me to consider such theories of sovereignty as we may find embedded in our Constitution. It is noteworthy that the phrase "Sovereignty and integrity of India" was inserted in 1963 in Article 19(2), (3) and (4),, to denote the political independence and whole ness of th~ country vis a vis other countries. It was also introduced in the oaths of "allegiance" to the Constitution prescribed in the Third Schedule indicating that the duty uphold "the Sovereignty and integrity of India" follows from a recognition of the Supremacy of the Con ·stitution. The term "sovereign" is only used in the preamble of our Constitution, which says : · IB D E F "We, the people of India, having solemnly resolved constitute India into a Sovereign Democratic Republic and to secure all its citizens : r _H • " • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • # • • • ,. 6 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ln our constituent Assembly this twentysixth day of November, 1949, do hereby adopt, enact and give to our selves this Constitution". SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) • 609· This Court, exercising the powers vested in it under the Constitu tion to declare the law of the land, cannot go behind the clear words of the Constitution on such a matter .. We have to presume that the Constitution was actually made by the people of India by virtue of their political sovereignty which enabled them to create a legally Sovereign Democratic. Republic to which they consigned or entrusted,, through the Constitution, the use of sovereign power to be exercised, in its different forms, by the three different organs of Government, each acting on behalf of the whole people, so as to serve the objects stated in the Preamble. This reference to "the people of India" is much more than a legal fiction. It is an assertion in the basic legal instrument for the governance of this country of the fact of a new political powers. The legal effect of the terms of the instrument . is another matter. • c E. It has been pointed out, in the Kesvananda Bharti's case (supra), that the preamble of our Constitution did not, like that of the American 6onstitution, "walk before the Constitution",, but was adopted after the rest of the Constitution was passed so that it is really a part of the Constitution itself. It means that the Constitution is a document re cording an act of entrustment and conveyance by the people of India, D• the political sovereign, of legal authority to act on its behalf to a "Sovereign Democratic Republic". "This Constitution'' 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, the majority view in Kesvananda's case (supra), be according to changed even py resorting; to Article 368. It necessarily follows, from such a view, that Sovereignty,, as the power of taking ultimate or fina] decisions on broad politico-legal issues involved in any proposed changes in the law, becomes divisible. The people are not excluded from the exercise. of it. They participate in all the operations of the Republic through the organs of the State. They bind themselves to exercise their. individual and collective rights and powers only in the ways sanctioned and through agencies indicated by the Constitution. The Republic is controlled and directed by the Constitution to proceed towards certain destinations. and for certain purposes only. The power to clrnnge even the direction and purposes is itself divided in the sense G 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. This result, whethfr we like it or not, neces sarilv follows from our present Constitutional structure and scheme. If the judicial power operates here like a brake or a veto, it is not one which can be controlled by any advice or direction to the judiciary H as is the case in totalitarian regimes. In our system, which is demo cratic, its exercise is let to the judicial conscience of each individual judge. 'This is also a basic and distinguishing feature of democracy F J B •C iD :F '61 0 SUPREME COURT REPORTS [1976] 2 :;.c,R. as Prof. Friedman indicated in his "Law in a Changing Society" (p: 61) quoted by me in Kesvananda Bharati's case (supra) at p. 859). In. Kesvananda Bharati's case (supra), I had approvingly quoted the views of Prof. Ernest Barker, who, in his "Social and Political Theory", claiming to be elaborating the theory underlying the preamble to our own Constitution, pointed out that, ina.>much as the Constitu tion is the instrument which regulates the distribution betw~en and exercise of sovereign power, by the three organs of the Stat·~. and it is t.here constantly to govern and to be referred to and to be appealed to m any and every case of doubt and difficulty, it could itself,. con ceptually, be regarded as the true or "ultimate" soverci1m. that is to say, Sovereign as compared with "immediate" sovereignty of an organ of the Republic acting within its own sphere and at its own level. Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate "political" sovereign nor a legally unalterable and absolute soverei!1n. All constitutional and "legal" sovereigns an~ necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of. State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear "allegiance" to the Constitution as tliough the document itself is a personal Ruler. This accords with our own ancient notions of the law as "The King of Kings" and the majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means. · titular The theory outlined above would, of course, b~ unacceptable if sovereignty must necessarily he indivisible and located in a determi nate living person or persons-a really medieval concept which is not generally employed today even to describe the hereditary monarchs as "sovereigns", although the dictionari·~s may still give the derivative meaning of "sovereign" as the human ruler. Modern theories of even political sovereignty advanced by the Pluralist School-e.g. Gierke, Duguit, Mciver, Laski-look upon it as divisible and not as absolute and unlimited. Indeed, they go to the etxent of practically denuding sovereignty of all its customary connotations. Duguit aban dons "sovereignty" as an obsolescent doctrine and displaces it by the ruling principle of "social solidarity". Mciver thinks that. t~1e trad! tional concepts of sovereignty, dommated too long by legahst1c Austt nian views. needs to be discarded. His conclusion is that the State, with which' doctrine of sovereignty has been bound up, is "the asso ciation of associations", merely regulates the "orinciples of .association" or relations between individuals and associations in the mterests of Society as a whole. He wrote : ~H "At any moment the State is more the official guardian than the maker of the law. Its chief task is to ·uohold :th~ rule of law. and this imolies that it is itself also the sub1~t of Jaw, that it is bound in the system of legal values which it maintains." (See: R. M. Maclver: "The Modern State" p. 478) • SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 611 Laski, while mainly acc<:pting this rather negative approach, remini scent of 19th century Liberalism, would acc?rd the State a much m~re positive role in the interests not only of social order but also of soc10- economic engineering and progress. Marxists who saw in the State and its laws and all institutions supporting ~n -~xisting social order, the means of oppr~ssio~ and e~~ ploitation of the mass of the p_eople, dreamt of the ··w1thermg away of the State with its claims to 'Sovereignty'. But, the Russian Revo lution was followed by the· vastly increased powers of the State run for the benefit of the proleta,r_iat. Nevertheless, the Constitution of the U.S.S.R. guarantees to citizens not merely fundamental rights, including the right to work, but has a si;>ecial department of the Procurator General to enforce due observance of legality, according to the law of th-~ Constitution, by all the functionaries of Staie. Article 104 of their Constitution reads : "104. The Supreme Court of the U.S.S.R. is the highest judicial organ. The Supreme Court of the U.S.S.R. is charg ed with the supervision of the judicial activities of all the judicial organs of the U.S.S.R. and of the Union Republic within the limits established by Jaw." (See : A Denisov, M. Kirichenko' Soviet State-Law p. 400). It is true that legality is enforced in the U .S.S.R. not merely through the organs of the State but the vigilance of the Communist Party which consists of selected persons keeping a watch on the policy of the State. A. Y. Vyshinski, bowever, explained (See: Fun damental Tasks of Soviet Law 1938) that Soviet "law can no more be reduced simply to policy than cause can be identified with effect". Strict observance of "Socialist Legality", under the supremacy of the Constitution, is entrusted to the care of the State, with its three ornans, the Communist Party, and the people of the U.S.S.R. (See : "'The Soviet Legal System" by M/s. John N. Hazard and Issac Shapiro). Although, Art. 15 of the Constitution of the U.S.S.R. speaks of the "Sovereignty" and "Sovereign Rights" of the Union Republics, yet, it is made clear that these Republics function subject to the supremacy 'Of the Constitution. Hence, the supremacy of the Constitution is a principle operating above and limiting the Sovereignties of the Socialist Re pubiics. recognised by the Constitution of the U.S.S.R. also Gierke made a wide survey and a penetrating analysis of juristic thinking, upto the end of the 19th century, on sovereignty, derived, on the one hand, from t~e·ories of the sovereignty of the Ruler, and, on the other, from theones of popular sovereign1y. He observed: (See: "Natural Law and theory of Society" by Otto Gierke translated by Ernest Barker, Vol. I, p. 153) about the approach of Kant: "Kant sketches, indeed, an ideal O:institutional State in which popular sovereignty is nominally present; but no liv- ing 'subject' of supreme authority is anywhere really to be A B c D E F G H. , I • 612 ·suPREME COURT REPORTS (1976] 2 S.C.R. A B c D E F G H found in this State. ·The 'bearers' of the different ·powers (legislative, executive and judicial) are supposed to govern, but each is subject to a strict legal obligation apv.ropriate to its own sphere; and over them all, as the Sovereign proper, the abstract Law of Reason is finally enthroned." He concluded (at p. 153) : "The history of the theory of constituti:onalism shows how a doctrine derived from the principle of popular sover- . eignty could produce almost the same results as the other (and apparently opposite) system uf thought which started from the principle of the sovereignty of the Ruler. In the on'e case, just as in the other, the inviolability of sovereignty, and the unity of the personality of the State, are sacrificed, order to attain the possibility of a constitutional law which is binding even on the Sovereign." A thoory of a "Legal Sovereignty" must necessarily demarcate the sphere of its "legal" or proper operation as opposed to mere use of power either capriciously or divorced from human reason and natural justice. Ernest Barker's statement of it, quoted by me Kesvananda's case (supra), seemed to me to satisfy this requirement. After pointing out that Sovereignty, by which I understand one recog nised by lay.', is limited both by its own "nature" as well as its "mode of action", it coli.eludes: (at p. 867-868) : "Sovereignty moves withinl the cireie of the legal asso ciation, and only within that circle it decides U{YOn questions of a legal order, and only upon those questions. Moving with in that circle, and deciding upon those questions, sovereignty will only make legal pronouncements, and it will make them It is not a according to regular rules of legal procedure. capricious power of doing anything in any way : it is a legal po!Ver of settling finally legal questions in a legal way." There should be no difficulty in• accepting such theory if one can con ceive of an ordered system or "government of laws" as opposed to a "Government of men" placed beyond limitations of this kind. At any rate, it is implicit in the very idea of a Constitution. Our Comsti tution not only regulates the operations of the organs of State but symbolises the unity of the Republic and contains the inspiring hopes and aspirations and cherished goals of all the efforts ·of the nation. It operates not merely through the law but also on the minds and feelings of the people. Prof. Willis, in his "Constitutional Law of the United States" ad ·he vocates the doctrine of "Sovereignty of the People" for which finds support in Abraham Lincoln's well known description 0f the American system as "a Government of the people, for the people, by the peuple" as well as in a number of pronouncements of the American Supreme Court. After considering and rejecting a whole host of theories of political philosophers and jurists, including those Qf Bodin, Hegel, Hooker, Hobbes, Locke, Rousseau, Fichte, Kant, SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 613 Austin, Brown, Dicey, Willoughby, Duguit, and Laski, he opines : (at p. 51): A "As Dewey says, the forces which detennine the govern ment are sovereign. The effective social forces are not the Union, nor the States, nor .the oligarchy of States, nor the organs of Government, nor the Constitution, n'Or natural law, but those forces which created these organisations and agents and institutions, and to whom they are all ultimately respon sible." According to him, the "Sovereignty .of the People" which he advocates does not mean an anarchic licence given to each individual or group to do as he or it pleases, but stands for the power of the people, "or ganised in Goveinment to express and adjust their will either directly or through representatives". He explains, in the rest of his work, how the government of the U.S.A., in the broader sense of all that social control which, operating through the three departments of State, has to take place iu accordance with the Constitution. This concept of a nation "organised in Government" appears to me to clearly intro duce the idea of a Constitution which lays down what that organisation is and how it must operate. Although Prof. Willis rejects the vit:w that the Constitution is' "Sovereign", bccau~e it can be altered by the people, he is obliged to accept something resembling it because he sees that the "people", though of as a mere aggregation or an amor phous mass, is too nebulous. Any satisfactory theory of sovereignty must account for the power of the people to act in certain ways or to move in certain directions. A 'hydra-headed' multitude 'Or mass of people will not know how to act or in which direction to move. It is its "Organisation" which provides that. And, its effort to organise itself and to rationalise will produce a Constitution for it which em . bodies its will as organised in the form of a government. The will of the people is thus inseparable from a Constitution which enables it to be expressed and then to govern. The Constitution neither is nor can be sovereign in the sep.se that the people who made it cannot un make it or change it. It only prescribes the correct mode of doing everything, including that of changing the very system of Government. It is only in this sense that it can be "Sovereign" or "supreme" and rule the life of a nation. · · Another American writer, Willoughby, has put forward the view that sovereignty, as an attribute of the State, conceived of as a juristic entity apart from its governmental organs, cannot be legally limited. According to him, to limit it is destroy it. He says (See : Willoughby Oil'· "F\Jndamental concepts of Public Law-Tagore Law Lectures, 1924, at p. 77) : "There would seem to be no more value in attach ing legal rights and duties to the sovereign State than there is in pre ~licating the attributes of goodness and justice of a Divine Being who 1s regarded as Himself the creator, by His own un-restrained will of all distinctions between goodness and badness". But, this seems more a metaphysical than a realistic, more amoral Hobbes-Machiavellian If one's concept of the Divine Being than a Dante-Gandhian stance. arc ro be introduced into law, one could refer to those also which sec 19-126 SCI/76 B c D E F G H .. . ' I A B c D E F G H. 614 SUPREME COURT REPORTS [1976) 2 S.C.R. Divinity only in that order and that Law which seems to prevade and govern the whole physical world and the universe. Indeed, there are judicial dicta t-o the effect that God himself considered Himself bound by those elementary principles of justice whose love was planted in In Cooper v. Wandsworth Board of Works(1) Byles, ·man by Him. J. observed : . "The laws of God and man both give the party an oppor tunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an Oc casion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Has thou not eaten of the tree whereof I commanded thee that thou shouldest not eat'? And the same question was put to Eve also". It is cle-ar that no simpie theory of sovereignty fits the complex facts of modern life. Every theory of today, ultimately, rests on concepts more refined than the physical or spiritual might of some ruler, in whom executive, legislative, and judicial powers coalesce to take away all legal distincti0',1s between them. Even if thal was ever the concept of Sovereignty anywhere, it was cert•ainly not that of our Constitution makers and it is not ours today. Even Willoughby, dealing with Constitutionalism (Willoughby on "Nature of the State"· 1928, at p. 302) says: "the value of Constitutional government is not that it places sovereignty in the hands of the people, but that it pres cribes definite ways in which this sovereign power shall be exercised by the State". Hence, he too admits that the Constitution does place some limitation on exercise of sovereign power. That seems to me to be the essence of a Constitution and the rationale of its existence. Still another American writer, Orfield, in the course of his discus sion (See : The Amending of the Federal Constitution" by Lester B. Orfield 1971), of a number of concepts of sovereignty, seeins some times to almost consider Article 5 of the American Constitution, con taining the constituent power and its procedure, to be soverein. He concludes his discussion on the subject as follows (at p. 166) : "Each part of the amending body is subject to law, and may be altered or abolished. . The amending boely itself may be altered through the amending process, and limita tions on the future am<mding capacity may be imposed. The amending body is an artificial sovereign deriving its being from a law in the form of Article Five. The amend ing groups hold office for but a short time, and may be sup planted by others in the elections in which an increasingly larger electorate p•articipates. The theory of sovereignty, moreover, presupposes the continued orderly existence of the· In case of a revolution the commands of the government. (1) (1863), 14 C. B. (N. S.) 180. ... I • SMT. JNDlRA GANDHI V. RAJ NARAIN (Beg, J.) 615 , .. ·sovereign would be disregarded, and authority could no longer be ascribed to the amending body either in fact or in law. T.fle moral, religious, physical, and other factual limitations on the supposed sovereign are so important that it may p.erhaps be correct to say that they are also limitations; as there comes a time when law and fact ~bade into one another. Finally, when it throughout •all history, American as well as European, there never has beea a consensus as to the meaning of sovereignty, it seems that the term should be used only with the greatest circumspection." rememl)ered I rejects He rejects the concept of. sovereignty of the people as too vague and meaningless. And, for the reasons given above, he theory of a sovereignty of the amending body. His final conclusion seems to be tlrat it is better to avoid altogether eatangiement in the This view, however, overlooks the fact that concept of sovereignty. lawyers need a working theory of sovereignty to be able to decide legal <1uestions before them. As between the sovereignty of the amend ing Article and the sovereignty of the Constitution there should be little doubt that lawyers should and would prefer the sovereignty or it. supremacy of the whole constitution rather than of a,1y part of On the face of it, it appears more reoasonable and respectable to swear Article 368 or to the amending powers contained in it. a part of our Constitution which deserves greater devotion than any other part of it, it is certainly the preamble to our Constitution. J allegience to the whole Constitution, as we actually do, rather than If there The American Supreme Court, in the context of the especially American conditions and needs, ·after leaning sometimes towa!ds a re cognition of "State Sovereignty" (Sec : Ware v. Hylton(1), Dred Scott v. Sandford) (2) and at others towards a <lual system of Government which has prevailed in America See : e.g. Gibbus v. Ogde11(3) has, on the whole opted the "Sove- i reignty of the People which unifies the nation (see : e.g. White v. recognition of • Heart('), Keith v. Clark("), National Prohibition cases( 6 ). I cannot, while I am on the subject of American conditions, resist the temptation to quote the trenchant comments of Prof. Willis on • what he considers to be the dangers of the American system of govern ment. He wrote (at p. 68-69) : ,. ' "But the greatest danger in popular sovereignty does not lie in the intellectual field, but in the moral. While our i•atellectual level is not as high as it ought to be, our (1) (2) (3) (4) (5) (6) (1876) 3 Dall 199. (1856) 19 How. 393. (1824) (9 Wheat p. 1) (1871) 13 Wall. 646. (1878) 97 u. s. 454. (l 920) 253 u. s. p. 350. A B c D E F G A B c D E F G H 616 SUPREME COURT REPORTS [1976] 2 S.C.R. moral level is much lower than it C'an safely be if our form o~ _government is to endure permanently. Millions of our citizens are already members of the criminal class. Millions of other citizens who are not yet members of the criminal class ~re in t~e ec.onomic world doing things just as bad. as th~ ~hmgs which members of tiie crimr~al class arc doing. Millions of our people are concerned_ with their own selfish interests instead of the common good. Millions of our citizens are only too ready to ruin themselves and the rest of our people physically, intellectually, and morally by drugs and intoxicating liquors and vices. Our people do :not seem to be much concerned with high ideals in any of the fields of human endeavour. Our people as a whole do not seem to be seriously concerned with social planning for the pur pose of obtaining an ideal social order. They are more i•11terested in rotation in office than they are in good govern ment. They are more interested in winning law suits than in ideal system for the administration of justice. They are more i'11terested in making fortunes in the practice of medicine than in the prevention of disease. They are more interested in profits in the business world than they arc in a well-planned system of business organisation adapted to They are more interested the needs of our social order. in individualism than they arc in collective planning for the good of all. The effects of the moral standards of our people arc al~ ready manifest. As a result of our political and economic theories, there has developed a concentration of wealth un paralleled in human history. While on the whole the eco nomic level is comparatively high in the United States, the difference between the wealth of the many and that of the few is startling. One-fourth of the families in the United States before the depression had incomes of less tJian $ 500 and two-thirds of tl1e families in the United States i_neomes of less than $ 1 000 while 2 per cent of our populatmn owned 65 per cent ~f the wealth. There were .f~ur men any one f horn had an income as large as five million of the poorest This e()ncentration Qf we~lth ~asp robably one of the primary causes ef .th~ ~epre~s1on, and ~he depression has thrc.atcned ~ur cap1tal!~tie sy~e~. This only shows the danger rnhercnt 111 our poht1C'al or,,am- sation." 0 e: le in the United States. \ f J overeignty have revealed the nee If the people of an advanced country like the U.S.A., left denftirely or a to the e~t~ccp~,fctiifcro~~ :o~lding role 'of their State so as to overcomde uch greater arc the nee s more pos1 ive ,.,- the dangers advert~d to by Prof. Wi is, u~f 1!1o backward economically of a people potentially so great but act y t"ll are ? Our concepts of s taken en masse s 1 and e~ucat1ona y as oudr , 'th the needs df the people of our country. sovereignty must accor Wl 'll' h 11 " • • SMT. INDIRA GANDHI v. RAJ NARAIN (Beg, J.) 61 7 Our Constitution, which has been described by G. Austin as "the cor nerstone of the Nation'', was devised as a means to serve those needs. It has not only. the elevating preamble, deserving the allegience of every rational human being, but, unlike the American Constitution, the whole of Part IV of our Constitution which contains "Directive Principles of State Policy" to guide the future course of State action particularly in It is true that provisions of Part IV are not enfor the legislative field. ceable through the Courts against the State, but they are declared as fundamental in the governance of the country and are used to interpret the Constitution and to fix its meaning. I think, from this point of view also, we can say that the concept of the Supremacy of the Constitution is, undoubtedly, more suited to the needs of our country than any other so far put forwards. It not only places before us the goals towards which the nation must march but it is meant to compel our Sovereign Republic, with its three organs of Government to proceed in certain l t assumes that each organ of State will discharge its trust directions. faithfully. Can we deny it that supremacy which is the symbol and proof of the level of our civilisation ? I find that the doctrine of the supremacy or sovereignty of Constitution was adopted by a Bench of seven learned Judges of this Court in Special Reference No. 1 of 1964(1), where Gaiendragadkar, C.J., speaking for six learned Judges of' this Court said (at p. 446) "In a democratic country governed by a written Constitu tion, it is the Constitution which is supreme and sove-reign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Art. 368 of the Constitution itself makes a provision in . that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the re levant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense." The principle of the supremacy of the Constitution was then de clared by the majority of the learned Judges of this Court in Kesva nanda's case (supra) to be a part of the basic structure of the Constitu tion. The minority opinion, while not specifically dissenting from this view was that even what was considered by the majority to be a part of 'basic structure " was alterable under Article 368. But, no judge of this Court has so far held that, without even attempting to change what may be the basic structure of constitu!ion itself, by appropriate ame:id ments, judicial power could be exercised by Parliament under Article 368 on the assumption that it was already there. (I) [1965] 1 SCR 413. I A B c D E F G H I. . ' 618 SUPREME COURT REPORTS [1976] 2 s.c.R. A M. C. Setalvad, a distinguished jurist of India, said Common Law of Jndia" Hamlyn Lccturcs·12th scrics-1960 174-175) : (See : "The· (at p. B c D E F G H · "The Constitution divides the functions of the Union into the three categories of executive, legislative and judi cial functions following the pattern of the British North ·· America Act and the Commonwealth of Australia Act. Though this division of functions is not based on the doc trine of separation of powers as in the United States yet there is a broad division of functions between the appro priate authorities so that, for example, the legislature will not be entitled to arrogate to itself the judicial function of adjudication. 'The Indian Constitution has not ind..:ed recognised the doctrine of separation of powers absolute rigidity but the functions of the different parts of branches of the Government have been sufficiently diffe rentiated and consequently ft can very well be said ·that our Constitution docs not contemplate assumption, by one organ or part of the State, of functions that essentially [Sec Rai Saheb R. J. Kapur & Ors. v. belong to another'. State of Pzmjab (:1)]. _Thi~ will no doubt strike one accustomed to the established supremacy of Parliament in England as unusual. In the course of its historical deve lopment Parliament has performed and in a way still per Indeed the expression 'Court of forms judicial functions. lawyers. How Parliament' is not unfamiliar to English ever, a differentiation of the functions of different depart ments is an invariable feature of all written constitutions. The Yery purpose of a written constitution is the demarca tion of the powers of different departments of government so that the exercise of their powers may be limited to their In countries governed by a written cons particular fields. titution, as India is, the supreme authority is not Parlia ment but the Constitution. Contrasting it with the supre macy of Parliament, Dicey has characterised supremacy of the Constitution." A. V. Dicey, the celebrated propounder of the doctrine of sovereignty of Parliament, had criticized Austin for frequently mixing up "legal sovereignty" and "political sovereignty" (Sec : Law of the Constitution by A. V. Dicey-10th Edn. p. 72). He contrasted the British principle of "Parliamentary Sovereignty" with what was des- cribed bv him the "Supremacy of the Constitution" in America. He observed (at p. 165) : , • "But. if their notions were conceptions derived English law, the great statesmen of America gave to old ideas a perfectly new expansion, and for the first time in the sl1ould history of the world formed a constitution wl1ich so doing in strictness be 'the law of the land', and (l) [1955] 2 SCR 225 at p. 235. SMT. INDIRA GANDHI V. RAJ NARA.IN (Beg, J.) 619 created modern federalism. For the essential characteristics ·of federalism-the supremacy of t~e constitutio~-~~e dis the 1ud1ciary tribution of powers-the authority of reappear, though no doubt with modifications, in every true federal state." He said (at p. 144) : "A federal state derives its existence from the consti tution, just as a corporation derives its existence from the grant by which it is created. Hence, every power, exe~u­ tive, legislative, or judicial, whether if belongs to the nation or to the individual States, is subordinate to and controlled by the constitution." He wrote about the American Supreme Court (at p. 159) : "Of the nature and position of the Supreme Court itself this much alone need for our present purpose be noted. The . court derives its existence from the Constitution, and stands therefore on an equality with the President and with Con gress; the members thereof (in common with every Judge of the Federal Judiciary) hold their places during good behaviour, at salaries which cannot be diminished during a judge's tenure of office." The theory of the Supremacy of the Constitution is thus not a new one at all. It is inherent in the very concept of "the auguster to be thing" which lies behind Parliament or king and is sought embodied in the Constitution of a country. The Judges, who are vested with the authority and charged with the duty to uphold Constitution, do so as the mouthpieces of what has been called the "Real Will" of the people themselves by political philosophers such as Bosanquet. That, as I have indicated earlier, is the theory under lying the system of judicial review. Such a system may delay changes but should not, I think, speaking entirely for myself, deny or defeat the right of the people to bring about any change, whether Indeed, in Kesvananda's case basic or not, in the Constitution. (supra), I indicated that I thought that the most proper and appro priate function of the amending power in a Constitution, which also a part of the Constitution, and, indeed, its most potent part was that of making basic changes so as to avert constitutional break downs and revoultions if possible. However, we are precluded from acting upon such a broad view of amending power in this case as we arc bound by the majority opinion in Kesvananda's case (supra) that implied limitations of "a basic structure", operating from even out side the language of Art. 368, as it stood before the 24th amendment, restrict its scope. These limitations must however, be provisions of the Constitution. related It has not been argued before us that the introduction by the 24th the contents or it a amendment of the new clause· (1) in article 368, containing "constituent power", itself amplifies or increases changes the character of the power in Article 368 by making A B c D E F. G H A B c D E F G H 620 SUPREME COURT REPORTS (1976) 2 S.C,R. composite power so as to include a new type of judicial or quasi It is evident from the judg j udcial power also within its fold now. ments of learned Judges of this Court in Golaknath's case (supra) that possible distinctions between amending power and "constituent power" and "Sovereign power" figured prominently in arguments in that case. Wanchoo, J., in his minority opinion [see: 1957(2) SCR at p. 833), saicj that it was not necessary, for the purposes of case, to decide whether the amending power was as wide as "sovereign power" of the Constituent Assembly which had framed our Constitution. After all the discussion that had taken place th~n, It does not use the words "sovereignty" came the 24th amendment. or "sovereign ·power". I presume that the words "constituent power" were advisedly used in it so as to clarify the position and not to put in or to include anything beyond constitution making power in Art. 368. The "constituent power" is still bound by the exclusively pres cribed procedure to "amend by way of addition, variation, or repeal" It is entirely a law making pro any provision of the Constitution. cedure elaborately set out in clause (2). In fact, Art. 368 contains so much of the fundamental law making or legislative procedure that five judges of this Court, led by Subba Rao, C.J., opined in Golak nath's case (supra), that it wa~ confined to procedure and did not contain at all the substantive power to amend. Clause ( 1) of Art. 368, introduced by the 24th amendment, was, apparently, meant to remove this objection and to do no more. It could not be intended to pour some new amalgam of executive and judicial or quasi-judicial substantive powers into it also by some implication so as to do away with the very need for snch an elaborate and carefully drawn up Constitution such as ours. The absence of ·any quasi-judicial proce dure, 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 special Constituent field of law making. An omission to provide any quasi-judicial procedure in Article 368, which, apparently, fur nishes a self-contained code, means that no such power was meant to be included here at all. Proper exercise of inseparable from appropriate procedure. judicial power Learned Counsel supporting the 39th Amendment tried to find the meaning of "constituent power" in theoretical speculations about the meaning of "the sovereignty of the people", on the one hand, and the sovereignty of the medieval monarch, on the other, instead of looking to the. legislative history of the "constituent power". I have, therefore, also referred to some of these theories and practices from. ancient times so as to be able to indicate the precise significance or relevance of various concepts and decisions placed before us. These theories and practices could •have only an indirect bearing on meaning of the term "constituent power" in Article 368. They are more germane to a statement of a correct theory of sovereignty which underlies what has been called the "basic structure" of our Consti tution. .. , ' SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 621 There are scattered dicta in the judgments of this Court speaking Qf the "sovereignty of the people" which, in my opinion, ~an only be related to the political sovereignty of the people recogm_sed by the preamble to our Constitution where the. pe?ple are desenbed a~ t~e . Co11stitution makers who gave the Const1tut1q_n unto themsel~es. fh1s, however, docs not, in my opinion, mean that the peoi;ile retamed u_nto tllemselves any residue of legal sovereignty. They did not presenbe, apart from dividing the exercis~ of sover~ig~ power roughly betwee~ the three organs of the Republic, each with its own modus operandi, any other or direct method, such as Initiative or ~eferendum, ~or exercising their politically sovereign power. The view I have to put forward in the foregoing pages is that the people entrusted to the three organs of the Sovereign Democratic Republic they consti tuted the exercise of three aspects of sovereign power on behalf of the people. This seems to ml;)_ to be the only way of reconciling the _idea of a sovereign people, in the political sense, and the sovereignty of the Republic, represented by a legally _supreme constitution, so that the "sovereign" powers of each of the three organs of the Repub lic had to be exercised in conformity with the mandates, both posi tive and negative, express and in1plied, of the Constitution. I would prefer to describe this concept as one of the "supremacy of the Cons titution" instead of "sovereignty" of the Constitution because of the theoretical, speculative, and "emotive" clouds which have gathered around the term "sovereignty". I have tried, to point out that the term sovereignty in its origin is associated with the actual human ruler or authority wielding theore tically absolute or final powers. Political philosophers are particu larly concerned with the problem of determining the location and manner of exercise of such powers if any. Jurists, however, have also occupied themselves with these problems partly because consti tutional law, as Dicey once ppinted out, has some overlapping terri tory with the political theory which underlies it. Some Constitutional lawyers, such as Ivor Jennings, have said that it is flirtation with political theory which has brought into the juristic fold a term such as 'sovereignty'. On the other hand, political theorists, such as Mc Iver, have blamed, far less justly, ·jurists like Austin infecting pol~t~cal theory wi!h leg~listic authoritarian notions of sovereignty. Poltt1cal theonsts, m their attemQts to understand and rationalize, and sometimes to justify or condemn a system are more concerned with the operations of all those socio-economic-cum-political· forces which govern society. Law is, for them, one of these forces and reflects them. Lawyers have been compelled to 'Flirt' (if I may employ the term used by Sir Ivor Jennings. with sovereignty) only because they have to look for some final authority which determines the validity of the claims they have to deal with. Political theory, faced with the complexities of modern life, finds location of sovereignty as a power concept too elusive and difficult a task to be satisfactorily carried out. . Some of them would like to banish the region of purely moral philosophy where it could be reserved for such freedom or thought and will and action as even the most powerful A B c D E F G H ' . ' A B c D E F G H 622 SUI' REM E COURT REPORTS [ 197 6) 2 S.C.R. techniques based on Prof. totalitarian State, employing all the Pavlov's theories for purpq_ses ·of propaganda, cannot from the individual. Others find it of use only in International Law freedom to denote that independence of the national State and the which it c!aims and is entitled to from outside interference. Jurists as well as practical lawyers have to be content with finding an ulti- mate measuring rod in a fundamental law which could test the validity of exercise of every kind of governmental power. Their quest for certainty is even more pressing and urgent than that of the political theorist. For their purposes, the supremacy of the Constitution, of which a very vital and necessary part is the constituent power, sufficient. Of course, they have to determine the content of "consti- tuent power" itself in the light of all relevant considerations which, as I !Jave indicated above, may take us outside the ordinary range of Law. Nevertheless, our deviation from the ortbodox canons of construction and interpretation, when faced with such a problem, must not be so wide as to rob our method of construction itself of legal propriety or give rise to th9 suspicion that we have ourselves clearly trespassed into the territory of law making. The lines of demarcation, though difficult to draw sometimes, arc, nevertheless, there. "" ' I do not think that it is at all helpful to refer to certain authorities of this Ccurt which were, rather surprisingly, relied upon by learned Counsel supporting the 39th amendment to discover the nature of the "constituent power" contained in Art. 368. I will content myself by citing a passage from the last of these cases relied .upon which men tions the earlier cases of this Court also on the effect of a "Firman", in Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors.( 1), Gajendragadkar, J., speaking for this Court (at p. 591) : \ "In appreciating the effect of this Firman, necessary to decide wheth_cr the Finnan is a law or not. It is matrer of common knowledge that at the relevant the Maharana of Udaipur was an absolute monarch in whom vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maha rana of Udaipur, it is difficult to make any distinction bet ween an executive order issued by him or a legislative com mand issued by him. Any order, issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. This position is covered by dec\sions of this Court and it has not been disputed before us, Vide Madhaorao Phalke v. the State of Madhya Bharat ( 1960) 1 SCR 957, Ammer-un-Nisa Begum v. Mahboob Begum (AIR 1955 SC 352), and Director of Endowments, Gov ernment of Hyderabad v. Akram Ali (AIR 1956 SC 60)." , . It is evident, from the quotation, relied upon by the Solicitor General. that tl1is Court was not deciding whether the Firman was eve1' a "law'' in the sense of a general norm which had to be applied - - - - - · · - - - - - - (J) (19641 (I) SCR p. 561 @ 591. SMT. INDIRA GANDHI v. RAJ NARAIN (Beg, /.) 623 It was held that whatever be to the decision of cases. juristic character, it had the "force of law" inasmuch as the Ruler of Udaipur was an absolute ruler who combined in his person the legislative, the judicial and executive authority of the State. That was the Cons titution of Udaipur. . The doctrine of separation of powers, in such a context, was really irrelevant. Art. 368 of our Constitution, however, is not a power acquired by our Republic by State Succ~ssion from the powers of Indian ruling princes. The legislative. history behind it is entirely different. As a matter of legislative history, we will find the source of "constituent power" in Section 6 & 8 of the Indian Independence Act passed-by the British Parliament. Section 6 of that Act constituted a '"Legislature" fot each of two Dominions set up with plenary powers of Ic~islatin.1. The legislative powers of the Legislature of each Dominion were so enlarged by Sec. 8 that it could frame the Consti tution of the_ Dominion concerned. This was a transfer of only a legislative power. Sec. 8 said : "for the purpose of making provision as to the Con;titution of the Dominion, the legislature of the dominion l"hcse was recognised as the constituent assernb1y of the Dominion". po,vc~ were "pienary"" in the sense· in which this term is used Qa~eii v. Burah( 1), but they were confined to law making and did not extend to adjudication or decision of .individual cases which certainly distinguishable from a law making power. For purposes other than framing of the Constitution, provision of the Government repealed and . replaced by of India .Act operated until they were other. relevant provisions. Such was the process of a le2islative s_uccession through which institutional transformation or transition to a new but corresponding set of institutions was brought about. In the eyes of law; this was an evolutionary process through constitu- tional channels and not a revolutionary break with the past. It is true that, in the exercise of the law making constituent power, brought in by Sec. 8 of the Indian Independence Act, the legislatures could be armed with judicial. powers as well if appropriate laws were made to that effect. But, as no law, either Co'astitutional or ordi- nary was passed, preceding. 39th amendment to repeal the Act of 1951 and then to vest a judicial power in Parliament, so as to enable it to take over and decide election disputes itself directly, I do not sec how clause (4) of Art. 329A, if it contained certain provisions on the assumption that. such a judicial power was already there Parliament, could be valid as a piece of mere ·1aw making. How- · ever, Counsel supporting the 39th Amendment had, submitted Article 329A (4) evidenced and constituted. an exercise of some "unbroken" or a combined legislative and judicial power a proposi- tion for which no precedent of any such consolidated action of a cons- tituent body was cited from any part of the world. T11e Firmans of former Indian ruling princes were hardly suitable or applicable pre cedents. A c O·. F G· An attempt was made to convince us that what may not have H been otherwise possible for Parliament to do bceoame possib_lc by · (I) 5 T. A. 178. • ... .,.. .\ ·• • A B c D E F G H 624 SUPREME COURT REPORTS [1976) 2 S.C.R. invoking the presumed exercise of some judicial power imported by Art. 105 (3) of the Ca.istitution which says : ' "105(3) ...... the powers, privileges and immunities of each House of ParHament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliamenf by law, and, until defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members·and committees, at the commcncefilent of this ConstitutiO'il", I am unable to see how what was not .conferred upon Parliament itself, in its constituent capacity, could be impliedly assumed to be there by virtue of certain "powers, privileges and immunities" which belong separately to each House of Parliament. Such a claim could not be based upon what is to be found directly' in Art. 368. It reasoning would. is sought to be derived obviously, conflict with the provisions of Art. 329(b) of the Consti tution which indicates that an· cledion dispute can only be resolved by an election petition before a forum provided by an ordinary enact ment. Article 329(b) says; .Art. 105. This "329(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under :tay law made by the appropriate Legislature." · In exercise of its powers under Art. 329(b) our Parliament had The procedure provided by the Act had . enacted the Act of 1951. the binding force of a constitutionally prescribed procedure. not be circumvented unless, with reference to cases covered by Art. 329(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, 'md that Parliament, in exercise of constituent function, had both legislated and adjudicated. That is w~at we ·were-asked to accept. It could · The well recognised rule of construction of statutes, which must apply to the interpretation of the Constitution as well is : ."Expressio Unius Est Exclus/o Alterius". From this is derived the subsidiary rule that an expressly laid down mode of doing something necessarily prohibits the dobg of that thing in any other manner. .The broad general principle is thus summarised in Crawford's "Statutory Co11s tructions" (1940) at p. 334 : · - -- - - ~ "Express Mention and Implied Exclusion (Expressio Unius Est Exclusio Alterius.-As a general rule, in interpretation of statutes, the mention of one thing implies the exclusion of another thing. It, therefore, logically follows that if a statute enumerates the thiags upon which it is to operate, everything else must nec~ssarily, and by implication, .. ,_ r , • • • ,. • ) SMT. INDIRA 'GANDH,I V. RAJ NARAIN (Beg, J.) 62 5 in question enumerates be excluded from its operation and effect. For instance, if the statute the matters over which a court has jurisdiction, no other matters may be in Simi1'arly, where a statute forbids the performance cluded. of certar,1 things, only those things expressly mentioned are forbidden. So also, if the statute directs that certain acts shall be done i,n a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is im- pliedly prohibited". · lt is interesting to note that in the Australian Constitution, where there is Art. 49, using la.nguage very similar to that of Art. 105 ( 3) of our Con~titution, there is also a separate but difforentlv cast Article 4 7 of the· Australian Constitution corresponding to Art.- 329 (b) of our Constitution. This article runs as follows : "Art. 47. Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, any question of disputed election to either House, shall be determined by the House in which the question arises". A B c D E What is separately, expressly, and es. pecially provided for by Art.\ 329(b) must necessarily fall outside the purview of Art. 105(3) on, the principle srated above. M<:Jreover, Art. 105(3) contained a tern- porary provision until other pr9vision was made by Parliament that behalf. Appropriate provisions were enacted by the Act of 1951 in compliance with Art. 329(b) because that was the proper Article for it. It would be idle to contend that these provisia,1s 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 Art. 329A( 4). Again, a purpor-r F ted exercise of power, in enacting Article 329A(4), could only be a law making power a!nd not any other power which could conceivably fall under Art. 105, sub. Art. (3). Nevertheless, it was suggested; by copious references to the origin of the power of the House of Commons to decide disputes relating to elections, that such a power exists in each House of our Parilament as its inherent power. Such an argument completely overlooks that, quite apart from the great difference made by prnviding both the forum and the procedure for deciding election disputes indicated by Art. 329 (b) of our Constitution, Art. 105 (3 ). itself could only refer to such power as were still exercis-\ able by the House of Commons at the time when our Constitution was .,, passed. Long before tlrat, the House of Commons in England had ceased to decide election disputes itself. Ill\ fact, the power to Courts by statute and has not resumed it. Jaw enacted i~1 the Representation of People Act, 1949, by the British Parliament confirmed this transfer or delegation of power, Section It had transferred H G A B c D· E F G H 626 SUPRH!E COURT REPORTS (1976] 2 S.C.R. 107 of that Act makes it clear, like Art. 329(b) of our Constitution, that the statutory remedies are the only ones open for election disputes. The reasons why the House of Commons itself saw the nct:d entrusting to a rota of High Court Judges, the jurisdiction at one time exercised by it directly to determine its election disputes, is found thus stated by Blackstone, quoting Erskine May's "Parliamentary Practice and Procedure (at p. 153-166) : "For a considerable time after the house had obtained this jurisdiction, controverted elections were tried by commi ttees specially nominated, composed of privy councillors and burgesses, well qualified for the duties entrusted to them. But after 1672, it becarµe an open committee, in which 'all who came had voices; and at length a hearing at the bar of the House was considered preferable to an inquiry by a committee. Here again, to use the words of Sir Erskine May, "fhe partiality and injustice of the judges was soon notorious. Parties tried their strength-the friends of rival candidates canvassed and manoeuvred, and scats corruptly Such gained, were as corruptly protected or voted away. were the results of the usurpation of judicial functions by a popular body". In order to remedy, if possible, these uaquestionable evils, the statute 10 Geo. III c.16, called from its author the Grenville Act, was passed in 1770, and the trial of election petitions transferred to a select committee of thirteen mem bers, which it was thought would be 'a court independent of For a the house, though composed of its own members'. time there was a marked improvement in the decision of controverted elections. 'But too soon it became evident that corruption and party spirit had not been overcome. Crowds now attended the ballot, as they had previously come to the vote :-not to secure justice, but, to 'aid their own The party, whether of the petitioner or political friends'. sitting ·member, which attended in the greatest number inevitably had the numerical majority of names drawn for the committee, and from this list, the petitioner and sitting member struck out alternately O'ae name untiJ the commitee was reduced to thirteen : the majority of the house was necessarily a majority of the committee. The result it was not difficult to foresee. Though the members 'were sworn to do justice between the rival candidates, yet the circumstances under which they were notoriously chosen, their own party-bias, and a lax conventional morality favoured by the obscurity and inconsistencies of the election law, and by the conflicting decision of incapable tribunals, led to this equivocal result : that the right was generally discovered to be on the side of the candidate who professed ' ' SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 627 the same political opinions as the majority of mjttee'. the Com- A . :'By these means the majority of the house continued, with less directness ~ad certainty, and perhaps with less open scandal, to nominate their own members, as they had done before the Grenville Act. And for h•alf a century, this system with siight variations of procedu_re, was suffered to prevail. In 1839, however, the ballot was at length superseded by Sir Robert Peel's Act; committees were redu ced to six members, and nomr,rntcd by an impartial body the General Committee pf Elections. The same principle of selection was adhered to in later Acts, with additional securities for i~partiality, and the committee was finally reduced to five members. The evil was thus greatly dimi nished; but still the sinister influence of party was not wholly In the nomination of ele9tid11 committees, one overcome. party or the other necessarily had a majority of one, and though these tribunals undoubtedly became far J:llOre able and judicial, their constitution and proceedings often ex posed them to imputation of political bias'. At length by the statute 31 & 3 2 Viet. c.125, the trial of election petitions was tra•asferred to certain of the puisne judges a Westminster, who are selected annually to form a rotµ for this specific purpose; and who inquire upon the spot_ in open court into the allegations of a petitioner, either claiming a seat, or alleging an undue r(!turn. or election. The decision of the judge, who has power to reserve his judgment until he has consulted the Common Pleas division of the High Court, in which these proceedings are instituted, is final to all intents and purposes; the House of Comnwns being bound to 'give the necessary directions for confirming or altering the returns or for issuing a writ for a new election, or carrying such detennination into execution as circums tances may require". And this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our inquiries into the laws and customs more peculiarly relative to the House of Commons". I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval "High Court of Parliament" in England, that a judiciaJ__power •also devolved upon our Parliament through the Constituent Assembly, mentioned in Sec. 8 of the Indian Independence Act of 194 7. As already indicated by me, the Constituent Assembly was invested with law making and not judicial powers. Whatever judicial power may have been posse ssed once by English Kings, sitting in Parliament, constituting highest Court of the realm i.n medival England, have devolved solely on the House of Lords as the final court of apeal in England. "King in Parliament" had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly B c D E F G '/ H • ) ) > ' ; A B c D E F SUPREME COURT REPORTS [1976] 1 s.c.R. not exercised a judicial power as a successor to the one time jurisdic tion of the "King in Parliament'', with the possible exception of the I use the qualifying word "poS:si power to punish for its contempts. ble" because the more correct view of it today may be that this power is •also, as it is considered in America, a mere incident of legislative power, necessary for the due performance of law making functions and not an "inheritance". . In Erskine May's Parliamentary Practice (18th Edn), after citing the opinions of Judges, to whom a reference was made by the House of Lords in Thorpe's case (1451), that "Lex Parlioamenti" seemed something as strange and pecvliar as foreign law is for Common Law Courts, it was explained (at page 187) "These views belonged to a time when the distinction between the judical and legislative functions of Parlrament was undrawn or ~mly beginning to be drawn, and when the separation of the Lords from the Commons was much less complete than it was in the seventeenth century. Views about the High Court of Parliament and its powers which were becoming antiquated in the time of Coke, continued to be repeated far into the eighteenth century, although :iftcr the Restoration principles began to be laid down which were more in accord with the facts of the modern constitution. But much confusion remained which was not diminished-. by the use of t\1e phrase 'privilege of Parliament' . This only means a body of rights comD!_<1,1 to both Houses, but it suggests joint action (or enforcement) by both-Houses, as in legislation, whereoas from Ferrers' case in Henry VIII's reign, in 1543 each House enforced its own privileges sepa rately. Three notions arise from this confusion of thought :

1. That the courts, being inferior to the High Court of Parliament, cannot call in question the decision of either House on a matter of privilege.

2. That the lex et consuetndo Parliamenti is a separate law, and therefore unknown to the. courts. G

3. That a Re~olution of either House declaratory of privilecre "' is a judicial precedent bindi'ng on the courts". The confusions mentioned above misled some people in this coun try, due to the provisions of Article 194(3) of our Constitution' on the question whether a House of a Legislature had not only the power to punish a citizen for contempt but also to exercise what is really a j~dicial baw_:r to interpret if,1d deter~ine the a~bit of its o~n jurisdic 1endragadkar, C.J., speakmg for this Court m Sp.'!cial tion. Reference No. 1 of 1964 (supra), rejected this claim and explained Th~, learned Chief Justice· pointed the Eng~is~ law on the subject. out the mc1dental character of any claim to a power, privilege, or H • • , SMT. INDIRA GANDHI V. RAJ NARAIN (Beg,/) 629 imunity which could be covered by Article 194 ( 3), a provision identi cally similar to Art. 105 ( 3) . He pointed out that the only excep tion to this rule was the power to punish for its own contempt which, since the decision of Privy Council in Kielley v. Carson(!), could be thought of as a power of the House of Commons even acquired as a kind of "inheritance" from the powers once possessed by the High Court of Parliament in England. But, as all judicial or quasi-judi cial power is, under our Constitution, expressly made cxerciseable under the supervision of the judicial organs of the State, it was held that a decision about the existence of the power to punish for con tempt, on the facts of a particular case, is vested in the High Court. Even Sarkar, J. in his dissentbg minority opinion, said (at p. 513) : "I do not think that the House of Commons was itself ever a Court. The history of that House does not support such a contention." The result that in England where Courts do determine the orbit ·of a claim to a power as •a Parliamentary preserve, on the facts of a case, although, once it is established that the claim. is a powe_r confined to its proper sphere, they will not decide. a mere question of its proper exercise. is similar to . Whatever view one may take of any other powers of Parliament, by reason ·of Art. 105 ( 3) of the Constitution, I am unab,le .. to see how exercise of the jurisdiction to determine an election dispute, which was, in accordance with Article 329 (b), already vested in the High Court by the Act of 1951 for all elections to the House or the People, could not o'aly be taken away by a Constitutional amendment, pur porting to repeal retrospectively the provisions of the Act of 1951, a piece of ordinary legislation, in their application to •a particular class of cases, but at the same time, a declaration given of the rights of the parties to a judgment, without first performing a judicial filnction also which was not it1cluded in the "constituent" or ::tny other law making power. The question was not clearly raised before us whether ·a· Consti tutional amendment could partially repeal the provisions· of an ordi nary piece of legislation, that is to say, the Act of 1951, in so as its application to a certain class of cases is concerned. -One of the submissions of the learned Counsel for the election petitioner, how ever, was that, inasmuch as the Constitution lays down -the norms ·to which ordinary legislation must conform, its proper sphere of operation is different from that of ordinary legislation which takes place u~1der the provisions of Articles 245 to 255 of the Constitution. The argu ment seemed to be, that, if ordinary law µiaking and constitution mak ing took place in different orbits or on different planes of law' making power what could be done by one method was necessarily prohibited Learned Counsel. relied upon a number of passages by the otl!er. from the judgment in Kesvananda Bhart•i's case (supra), and, i\1 particular, on what Ray, J., (as he then was) said (at p. 386) . "The constituent power is sui generis. The majority view in Golak Nath case that Article 13 ( 2) prevails over -- A B c E F G H {I) 4 Moore P. C. 63. 19-12'1S1p. Cl'76 630 SUPREME COURT REPORTS [ 197 6] 2 ·s.C.R. A B c D Article 368 was on the basis that there was no distinction between constituent and legislative power and an amendment of the Constitution was law and that such law attracted the opening words of Aricle 245 which in its turn attracted the provisions of Article 13 (2). Parliament took notice of the two conflicting views which had been gi.ken of the un amei..ided Article 368, took notice of the fact that the pre the decision in Shankari I>ondering judicial opilllion, namely, Prasad case, Sajjan Singh case and the minority views C'.i. five learned Judges in Golak Nath case 'Yere in favour of view that Article 368 contained the power of amendme'at and that power was the constituent power belonging to Par liament. Wanchoo, J. rightly said in Golak Nath case that the power under Article 368 is a c~nstituent change the fundamental law, that is to say, the Constitution and is distinct from ordinary legisl'ative power. So long as this distinction is kept in mind Parliament will have power under Article 368 to amend the Constitutid11 and what Parliament does under Article 368 is not ordinary law making which is subject to Article 13(2) or any other Arti This view o( Wa~choo, J. was cle of the Constitution. adopted by Parliament in the Constitution 24th Amendment Act which made explicit that under Article 368 Parliame',1t has the constituent power to amend this Constitution". E F G On the other hand, le;;irned Counsel defending the 39th Amend ment relied on ;;i number of passages from various judgments, including mine, in Kesvan;;inda Bharati's case (supra), indicating tl1at atle;;ist the minori~y view there was that the power of amendment contained Art. 368 was only- limited by the procedure laid down in Art. 368(2) of the Constitution ;;ind nothing else. It is true that thfa is what was emphasized by several learned Judges, including myself, in dealing with a C'aSe where the real question was whether th~ constituent power embraced ;;in amendment of the Constitution in such a way as to take away fundamental rights. But, •,1either the question whether "consti tuent power" itself cont;;iined judicial power within its fold nor question whether "constituent power" operated on a plane or in a sphere which excluded altogether what could be done through ordinary legislation were under consideraticm in Kesvananda's case (supra). Some passages were cited from my judgment in that case indicating that the constituent plane of basic changes ex~luded the ordinary law making plane of legislation, the two belonging, so to speak, to diffe. rent spheres or orbits .of operatid11. I think I had only cited Prof. Ernest Barker's statements of his theory some. of whi~h could convey that sense. But, I had not committed myself to view on the question whether there was a limit on the subject matter of constituent making. H It could be and has been argued, not without force, that there are no legal limitations upon the subject matter which may be cCJ1,1sidered fit for inclusion or incorporation in a constitution. This is • • ' . SMT. INDIRA GANDHI v .. RAJ NARAIN· (Beg, J.) 631 the good sense of the Constitution ,m~~ers. Consti!uti?ns,, differ greatly in this respect (See : Wheare s ~ode~n Cons.titutl~a p.49 to 51). What may be the ideal, from this pomt of-view, is not al ways the actual. Reference was also made in. support of this sub mission to Rottschefer on "Constitutional Vaw" (1939 edn. p.10). It is not necessary to pursue this question any further here. J had ·said in Kesvananda's case (Supra) after dealing with amending po~er in Article 368, on the assumption that it was an .exercise of a "sovereign power" (at p. 870) : A._ " • "No doubt the judicial organ has to decide the question of the limits of sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere". A B c In other words, I look upon a "sovereign power" Constitufa~n, as limited by the supremacy of the Constitution. itself, under the If the constitutional provisions compel us to hold, as I think they do, that no form of judicial or quasi-judicial power is included in the . D "'constituent power", contained in Art. 368 of the Constitution, no further question need really be considered by us if we. were to hold that the insertion of clause (4) in Article 329A necessarily involved, as a condition precedent to the makin__g: of the declaration found r.t the end ·of it, the performance of a quasi-judicial or judicial function. But, I do not think that we could go so far as that. "Legislative action can sometime be made to serve as an unobjectionable substitute what could and should, strictly and properly, be done judicially. But, insurmountable difficulties ?" could this be done here without legally E The Act of 1951, enacted under the provisions of article 329{b) of the Constitution, provided a procedure which could not be circum vented. This procedure was certainly applicable until 10.8.1975 when the 39th Amendment received Presidential assent. Rights of appeal under Sec. 116A of the Act having been invoked by the Origi- nal Respondent as wen as by the election petitioner, and the operation of the High Court's order having been suspended, the position was, the eyes of law, that of the election dispute was continued by a pro ceeding, exclusively prescribed by article 329(b) for the resolution of I do not think, that despite the the dispute, pending in this Court. impression created by the terms of the declaration at the end of clause (4) of Article 329A and the opening statement of the counsel for the G original respondent, we can assume that Parliament took over the case into its own hands to. decide it and to incorporate the result in the form ·of Article 329A(4) so that this may take the place of a possible judgment of this. Court. . Parliament could not be deamed to be un aware of the bar created by article 329(b) and the 1951 Act. F At one stage, counsel supporting the 39th amendment said that H the ~orms of the Act of l 9 51, together with the amendment of the ·Act m 1974 and the very recent ones of 1975, must have been ore- sent in the minds of members of Parliament and applied to the facts ' • .. ' A B c D E F G H 632 SUPREME COURT REPORTS [1976] 2 S.C.R. of the case. Such a contention, apart from overlooking the effect of thei bar of article 329(b), which operated against the case being taken up in Parliament directly until atleast 10.8.1975, just as Sec. 107 of the British Representation of People Act, 1949" operates against the adoption of such a course in England, overlooked the legal effect of the deeming prov,ision which, if valid, would repel such a submission of counsel supporting the 39th amendment. The deeming provision appeared to be quite sweeping. It said : "No law made by Parliament before the commence ment of the Constitution (Thir.ty-ninth Amendment) Act, 197 5, in s·o far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such per son a?, is referred to in clause (1) to either House of ParliJ ment. The effect of such a provision is thus stated, in the oft quoted passage from East End Dwellings Co. Ltd v. Finsbury Borough Council('~) : "If you are bidden 'to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state C>f affairs had in fact existed, must inevi tably have flowed from or accompanied it......... . . The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or per- mit your imagination to boggle when it comes to the inevit able corollaries of that state of affairs." When the effect of Article 329(b) and of the deeming provision was pointed out to learned counsel supporting the 4th clause of 329A, they took up the position that Parliament must have applied its own norms. We, however, do not kilow at all and cannot guess what mat ters were considered or the norms applied by' Parliament. No speeches made in Parliament on the proposed 39th amendment were cited be fore us by either side. We only know that the Objects & Reasons oi the 39th Amendment contain the following statements to show us whv Article 329A(4) was believed to be necessary: • , "Article 71 of the Constitution provides that disputes arising out of the election of the President or Vi.:e President shall be decided by the Supreme Court. The same ~rticle provides that matters relating to their election shall be regu lated by a parliamentary law. So far as the Prime Minister and the Speaker are concerned, matters relating to their election are regulated by the provisions of the Representa tion of the People Act, 1951. Under this Act the High Court has jurisdictiora to try an election petition presented against either of them. (I) [1952] A.C. 109 SMT. INDIRA GANDHI V. RAJ NARAIN (Beg, J.) 633

2. The President, the Vice President, the Prime Minister and the Speaker are holders of high offices. The President is not answerable to a court of law for anything done, while in office, in the exercise of his powers. Afortiori matters relating to his election should not be brought b~fore a court of law but should be entrusted to a forum other than a court. The same reasoning applies equally to the incum . bents of the office of Vice-President, Prime Minister and Speaker. It is accordingly proposed to provide that disputes relating to. the election of the President and Vice-President shall be determined by a forum as may be determined by a parliamenary law. Similar provision is proposed to be made in the case of the election to either House of Parlia ment or, as the case may be, to the House of the People of a person holding the office of Prime Minister or the Spea ker, it is further proposed to render pending proceedings in respect of such election under the existing law null and void. The Bill also provides that the parliamentary law creating a new forum for trial of election matters relating to the incum bents of the high offices above mentioned shall not be called in question in any court." • I think that this statement of Objects & Reasons and other reasons mentioned above by me lend support to the submission, to which Mr. Kaushal confined himself whilst other counsel supporting the validity of 329A(4) offered it only as an alternative submission. This was that the whole procedure adopted and needed being a law making procedure and nothing more there was no need to look for norms or for law applied as no judicial or quasi-judicial proceeding was invol ved. This approach certainly avoids the extraordinary anomalies and results involved in the proposition that "constituent power" embraces some indefinable or "unbroken" power to override laws and to with draw and decide all disputes, particularly in election matters, in Par liament itself. As already indicated, there is no provision anywhere 'for the exercise of overriding judicial or quasi-judicial powers by Parliament, It is difficult to conceive a case being considered by Parliament and the ratifying legislatures as. a case on trial. Parlia ment could not, therefore, be assumed t!O have withdrawn and then to have decided a particular case in a particular way by applying its If is presumed to know the l_aw. Ostensibly, Article own· norms. 329A(4) is part of an amendment of the Constitution for the purp<)ses !found in the Statement of Objects & Reasons. Only the declaration given at the end of it suggests that, in the course of it, the effect upon the case before us was considered and dealt with . If Article 329A(4) constituted only a piece of · purported law making, the next question, which deserves very serious consideration by us, is whether such purported law making is not fully covered by the undoubted law making power of Parliament to make law pros- . pectively as well as retrospectively, inter alia, to get rid of the legal effect or result of. a jud2)J1ent considered erroneous by it or to retros pectively validate an election it considers valid whatever may be its I will answer this question after reasons for reaching this conclusion. considering the relevant case law cited on the subject. A B c D E F G H t .. . A B c D E F G H 634 SUPREME COURT REPORTS [ 197 6] 2 S.C.R. A number of cases have been cited before us; some on retrospec· tive validation of taxing provisions, by removing defects, others 011 removal of the basis of or grounds of decisions given by Courts mak ing their judgments in effective, others affecting the jurisdiction of Courts in cases pending, either in the original Courts or in Courts of Appeal, so as to render proceedings infructuous, and still others cur· It is not necessary ing legally defective appointments or elections the principles to discuss these cases separately and individually as laid down there are well recognised. ing the cases cited. They were: M. P. V. Sudararamier & Co. v, The State of Andhra Pradesh & Anr.(1); Sri Vinod Kumar & Ors. v, The State of Himachal Pradesh(2); Jadab Singh & Ors. v. The Hima·· chat Pradesh Administration & Anr. (3); Udai Ram Sharma & Ors. etc. v. Union of India & Ors.( 4 ); Rustom Cavasjee Cooper v. Union of lndia( 5 ); Jagannath etc. etc. v. Authorised Officer Land Reforms & Ors. etc( 6 ); Khyerbari Tea Co. Ltd. & Anr. v. The State of Assam(7); M/s. Tirath Ram Rajindra Nath. Lucknow v. The State of U.P. & Anr.(S); Krishna Chandra Gangopadhyaya etc. v. The Union of India & Ors. (P): Pandia Nadar & Ors. v. The State of Tamil Nadu(1°); State of 0.rissa v. B. K. Bose( 11 ). I will be content with mention- · Cases were also cited where rights having been altered during the pendency of proceedings, Courts had to give effect to the rights as altered, and judgments .already . given on the strength of the previous law had ceased to have a binding force as res-judicata between parties or had to be set aside where appeals against them were pending. These were : State of U.P. v. Raja Anand Brahma Shah(l 2 ); Shn Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors.(1 3); Janapada Sabha, Chhindwara etc. v: The Central Provinces Sy11dicate Ltd. & Anr. etc.(114 ); Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc.(l"); State of Tamil Nadu & A nr. v. M. R. Gounder & Anr. ('1 6); Amarjit Kaur & Ors. v. Pritam Singh & Ors. (:17); Qudrat Ullah v. Municipal Board, Bareil ly(11B). • \ Cases were also cited of the exercise of Constitutional power of amendment, by placing Aots in the 9th Schedule, under the provisions of Article 31B of the Constitution, such as Jagannath etc. etc v. Authorised Officer, Land Reforms & Ors. etc., (supra) so that Acts so included in the 9th Schedule were immune from attack on the ground of alleged violation of any fundamental rights. It is not neces sary to cite them as this is now a well recognised Constitutional device whose validity has been upheld by this Court in Kesvananda Bharti'& case (supra). ' • ORDER In view of the fact that one of us (Beg, J.) is of the opini6n that there is no sufik!cnt ground for reviewing the judgment, this review application is dismissed. S.R. Review petition dismissed. 126 SCI/76-2,500-26-6-76-GIPF. 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