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TMI Blog1975 (11) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... the Representation of the People Act, 1951 hereinafter referred to as the 1951 Act by having obtained the assistance of Yashpal Kapur a gazetted officer for the furtherance of her election prospects. The High Court held the appellant to be disqualified for a period of six years from the date of 2. It should be stated here that this judgment 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 objections are the same which form grounds of appeal filed by the respondent in the High Court at Allahabad against an order of dismissal of Civil Misc. Writ. No. 3761 of 1975 filed in the High Court at Allahabad. 3. The Constitution (Thirty-ninth Amendment) Act, 1975 contains three principal features. First, Article 71 has been substituted by a new Article 71. The new Article 71 states that subject to the provisions of the Constitution, Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election to be void, such election continue to be valid in all respect 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. 9. 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 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). 10. The sixth clause states that the provisions of this article shall have effect notwithstanding anything contained in the Constitution. 11. 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 Nos. 87 to 124 inclusive are inserted. The Representation of the People Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the basis for democracy and judicial review. The fourth clause makes the provisions of Part VI of the Representation of the People Act inapplicable to the election of the Prime Minister and the Speaker. 20. Fifth, clause (4) destroys not only judicial review but also separation of power. The order of the High Court declaring the election to be void is declared valid (sie void). The cancellation of the judgment is denial of political justice which is the basic structure of the Constitution. 21. The second ground is that the condition of the House which passed the Constitution (Thirty-ninth Amendment) Act is illegal. It is said that a number of members of Parliament of the two Houses were detained by executive order after June 26, 1975. These persons were not supplied any grounds of detention or given any opportunity of making a representation against their detention. Unless the President 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 illegality and unconstitutionality and cannot be regarded as a session of the two House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under our Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our Constitution is dealt with by articles under the heads of the Union Judiciary and the State Judiciary. Under Article 136 any tribunal or court is amenable to the jurisdiction of 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 de 25. 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. Parliament 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 judge of the elections, returns and qualifications of its own members. That is Article 1, Section 5 of the American Constitution. In Australia any question of a disputed election to either House shall be determined by the House in which the question arises. Under the German Federal Republic Constitution the Legislature decides whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of an election contest for the office of the Governor is a political question and is not justifiable. In Truman H. Newberry v. United States of America the American Supreme Court held that the manner of elections can be controlled. In David S. Barry v. United States of America Ex. Rel. Thomas W. Cunninggham the decision of the American Supreme Court in Charles W. Baker v. Joe C. Carr 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. In Julian Bond v. James 'Sloppy' Floyd the exclusion of an elected representative because of his statement attacking 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 30. The American decisions show that if the House claims additional 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 unconstitutional ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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 application of higher norm is the creation of 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 applicable of law. The higher norm may determine the organ and the procedure by which 34. The general norm which attaches abstractly determined consequences, has to be applied to concrete cases in order that the sanction determined in abstract may be ordered and executed in concrete. The two essential 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of judgments or orders of competent courts and tribunals is changed and the judgments and orders are made ineffective. All the sales tax validation cases, the election validation cases are 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. 39. The effect of validation is to change the law so as 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 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. The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the Legislature rendering the basis of the judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualified was not an unconstitutional ground. The court held that there was no distinction between a disqualification decreed by the House on racial grounds and one alleged 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 fu 45. The case of Powell v. McCormack (supra) is also one of disqualification by the House of a Congressman on the basis of qualification which the House added to those specified in the Constitution. In other words, the House purported to unseat a member by disqualifying him on a ground not given in the Constitution. This was not a case of deciding an election dispute. Under the statute in question the Federal District Court had jurisdiction over all civil actions where controversy arises under the Constitution. This was a case entertained on the ground that exclusion of a member of the House was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers. 49. The constituent power is sui generis. It is different from legislative power. The position of unlimited law-making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power. 50. In Article 329A an exercise of judicial power is the question for determination. In legislative processes there may be judicial process. 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 exercise of judicial power. The determination of the amount will involve judicial procedure. When the Legislature determines the amount the fixation of amount is purely by legislative process. But in doing so the Legislature takes into account factors relevant to individual properties. 51. Every organ of the State has to asc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending body has excluded judicial review in Articles 31A, 31B and 31C. 54. Exclusion of the operation of the equality principle from some fields is constitutionally possible. Article 33 excludes judicial review in matters relating to the armed forces. Article 262(2) excludes jurisdiction of courts in water disputes. 55. Decision in election disputes may be made by the Legislature itself or may be made by courts or tribunals on behalf of the Legislature or may be made by courts and tribunals on their own exercising judicial functions. The concept of free and fair election is worked out by the Representation of the People Act. The Act provides a definition of corrupt practice for the guidance of the court. In making the law the Legislature acts on the concept of free and fair election. In any legislation relating to the validity of elections the concept of free and fair elections is an important consideration. In the process of election the concept of free and fair election is worked out by formulating the principles of franchise, and the free exercise of franchise. In cases of disputes as to election, the concept of free and fair election means that disputes are fairly and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, the constitutent power did not have any law to apply to the case, because the previous law did not apply and no other law was applied by clause (4). The validation of the election in the present case is, therefore, not by applying any law and it, therefore, offends rule of law. 60. It is true that no express mention is made in our Constitution of vesting the Judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary. 61. The constituent power is sovereign. Law-making power is subject to the Constitution. Parliament may create forum to hear election di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to summon a session of Parliament issued the Presidential Order under Article 359 of the Constitution on June 27, 1975. The right of the detained members of Parliament to move any court for the enforcement of their fundamental right under Article 22 of the Constitution was taken away by the executive or 67. The constitutional position of the two Houses of Parliament is governed by the provisions of Articles 79 and 81 of the Constitution. The respondent contends that unless the President 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 illegality and unconstitutionality 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. 68. The mere fact that a person who is under unconstitutional and illegal detention may be deprived of his right to move a court to secure his release from such illegal detention by means of a Parliament Order under Article 359 is said by the respondent not to render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not subject to the contro 71. If an outside agency illegally prevents a member's participation the House has the power to secure his presence. In 1543 Ferrers a member was arrested in London. The House, on hearing of his arrest, ordered the Sergeant to go to the Computer and demand his delivery. The Sergeant was resisted by the city officers, who were protected by the sheriffs. The commons laid their case before the Lords. They ordered the Sergeant to repair to the sheriffs, and to require the delivery 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 releasing members by a writ of privilege continued but no writ was to be obtained. 72. The present mode of releasing arrested members goes back to Shirley's case. In 1603 Shirley was imprisoned in the Fleet, in execution, before the meeting of Parliament. The Commons first tried to bring him into the House by habeas corpus, and then sent the Sergeant to demand his release. The warden refused to give up his prisoner. At length the warden delivered up the prisoner. 73. An Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 Parliament 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 parliamentary proceedings. The challenge will be questioning the detention on the ground that the detention is in violation of Article 19, 21 and 22. 77. 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. 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 law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom. 78. In Special Reference No. 1 of 1964, it was held that the court could entertain a petition under Article 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the leave of the House, would be a breach of privilege. 83. The committal of a member in England for high treason or any criminal offence is brought before the House by a letter addressed to the Speaker by the committing judge or magistrate. Where a member is convicted but released on bail pending an appeal, the duty of the Magistrate to communicate with the Speaker does not arise. No duty of informing the Speaker arises in the case of a person who 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 communication 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 Privileges being directed to consider whether such detention constituted a breach of the privileges of the 84. In K. Anandan Nambiar v. Chief Secretary, Government of Madras, the petitioner who were members of Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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 forbidden cannot be indirectly achieved. 88. The High Court found first that the appellant has to be regarded as a candidate from December 29, 1970 as she held herself out on that date as a candidate. The second finding is that the appellant obtained and procured the assistance of Yashpal Kapur for the furtherance 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 service though submitted on January 13, 1971 did not become effective until January 25, 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 January 7, 1971 at Munshi Ganj and another speech at Kalan on January 19, 1971. The third finding by the High Court is that the appellant and her election agent Yashpal Kapur procured and obtained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the finding of the High Court that Yashpal Kapur delivered election speeches on January 7, 1971 and January 19, 1971 under instructions of the appellant cannot be supported because the appellant was not a candidate either on January 7, 1971 or on January 19, 1971. 94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not to be effective until January 25, 1971 is contended to be displaced by legislative change by the Amendment Act, 1975. Section 8(b) of the Amendment Act, 1975 has introduced Explanation (3) at the end of Section 123(7) of the 1951 Act. This amendment has retrospective operation. 95. 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, resignation, termination of service, dismissal or removal from service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obtaining or procuring by candidate or his agent any assistance for the furtherance 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 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. 99. The proviso aforesaid shows that where persons in the service of the Government in the discharge of official duty make any arrangement or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ₹ 12, 892.97. The High Court added another sum of ₹ 18, 183.50. The three items which were added by the High Court were cost of erection of rostrums amounting to ₹ 16, 000, cost incurred in installation of loudspeakers amounting to ₹ 1, 951 and cost for providing car transport to respondent No. 1 amounting to ₹ 232.50. The total election expenses found by the High Court came to ₹ 31, 976.47 which was below the prescribed limit of ₹ 35, 000. 104. With regard to hiring charges of vehicles the High Court found that the respondent did not examine any witness to indicate as 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. 105. 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be assistance for furtherance of the prospects of that candidate's election. All these amendments have retrospective operation. Therefore, the cost of rostrums cannot be added to the election expenses of the appellant. Services rendered by government servants for the erection of rostrums and for supply of power for loudspeakers cannot be deemed to be assistance for the furtherance of the prospects of that candidate's election. 109. The respondent contended that Exhibit 118 which was the bank account of the District Congress Committee showed on the one hand that there was deposit of ₹ 69, 930 on March 4, 1971 and on the other there was a withdrawal of ₹ 40, 000 on March 4, 1971 and of ₹ 25, 000 on March 6, 1971, and, therefore, the sum of ₹ 65, 000 should be added to the election expenses of the appellant. When it was put to Yashpal Kapur that the sums of ₹ 40, 000 and ₹ 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 by a political party. There is no pleading that any amount has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no change in law and if expenses incurred by a political party can be identified with the election of a candidate then that expenditure is to be added to the election expenses of a candidate as being authorised by him. There are no findings by the High Court in the present appeals that any expenses by 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 totally repel the submissions on behalf of the respondent. Expenses incurred or authorised in connection with the election of a candidate by a political party shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or autho 114. Counsel for the respondent contended that the judgment of the High court should be reversed with regard to election expenses of the appellant on three counts. First, Exhibit 118 shows that the sum of ₹ 65, 000 which was drawn by Congress Committee should have been held by the High Court on a reasonable inference to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 expenditure in his interest by others (not his agent within the meaning of the term of the Election Laws) is not be taken note of. Where vehicles were engaged by the Congress Committee and used by the candidate 117. Expenses incurred by a political party in support of its candidates have been held by this Court not to fall within the mischief of Section 123 (6) of the 1951 Act (see Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi). In Rananjaya Singh v. Baijnath Singh this Court pointed out that expenses must be incurred or authorised by the candidate or his agent. In that case the manager, the assistant manager, 20 ziladars and their peons were alleged 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 of the father of the appellant. This Court said that the position in law could not be at all different if the father had gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Maghraj Patodia's case there is an observation that expenses incurred by a political party to advance to 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 constructed by Counsel for the respondent to mean that if a candidate takes advantage of the expenditure incurred or authorised b 121. Allegations that election expenses are incurred or authorised by a candidate or his agent will have to be proved. Authorisation means acceptance of the responsibility. Authorisation must precede the expenditure. Authorisation means reimbursement by the candidate or election agent of the person who has been authorised by the candidate or by the election agent of the candidate to spend or incur. In order to constitute authorisation the effect must be that the authority must carry with it the right of reimbursement. 122. For the foregoing reasons the contentions of the respondent that the the appellant exceeded the limit of election expenses fail. 123. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 126. The definition of candidate is amended by the Amendment Act, 1975, the contention of the respondent on the amendment of the definition of candidate are these. The expression returned candidate 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 confined to corrupt practices committed with reference to the definition of candidate . Corrupt practices alleged in relation to candidates will be relatable to any period and will not to be confined to corrupt practices alleged between the date of nomination and the date of election. If corrupt practices are committed by candidates who eventually become returned candidates such corrupt practices will be offenses within the meaning of Section 123 of the 1951 Act without any reference to the time of commission. 127. 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 consent of that candidate. The acts of a candidate may be either anterior to the date of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of excess expenses by validation. 132. The contentions on behalf of the respondent that ordinary legislative measures are subject like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. The hierarchical structure of the legal order of a State is that the Constitution is the highest level within national law. The Constitution in the formal sense is a solemn document containing a set of legal norms which may be changed only when special prescriptions are observed. The purpose of special prescriptions is to render the changes 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 particular, the creation of statu 133. Articles 245 and 246 give plenary powers to Legislature to legislate. The only question is whether any provision of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achment on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislature of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers. 137. The constitutional validity of a statue depends entirely on the existence of the legislative power and the express provision in Article 13. Apart from the limitation the Legislature is not subject to any other prohibition. The amendments made to the 1951 Act by the Amendment Acts, 1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain views departed from or otherwise to clarify the original intention. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dom of speech. This Court said that these laws do not stop a man from speaking. They merely prescribe conditions 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 common law right. It is a special right created by a statue which can only be exercised on the conditions laid down by the statue. The Fundamental Rights chapter has no bearing on a right like this created by a statue relating to election. 141. The contention on behalf of the respondent that the amendment of the definition of candidate has damaged or destroyed basic structure is untenable. There is no basic structure or basic feature or basic framework with regard to the time when under the election laws a person is a candidate at the election. The contention of the respondent that the expression returned candidate is descriptive 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 offences under the 1951 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a candidate may be unseated for bribery of treating committed months or even years before the vacancy or election (Youghal; Bodwin). The present position under the English Act is stated in Parker's Conduct of Parliamentary Elections 1970 Ed. at p. 330 to be that since the corrupt practice under consideration is purely a statutory offence, which only becomes a corrupt practice by reason of the person in whose support the prohibited expenses were incurred subsequently becoming a candidate, the candidate may not be held responsible. In Norwich the question was considered in relation to the responsibility of a candidate for payments which only became illegal practices by reason of his subsequently becoming a candidate as defined by statute, and it was held 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 set 145. Sections 171-A to 171-I of the Indian Penal Code and the provisions contained in Sections 125 to 136 of the 1951 Act follow the pattern of English Acts, namely, Statutes 17 18 Victoria, Chapter CII ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the respondent is that the Amendment Acts of 1974 and 1975 fall within the vice of delegated legislation because there are no guiding principles with regard to official duty or nature 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. 150. This Court in Matajog Dobey v. H. C. Bhari 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 restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Kesvananda Bharati's case (supra) is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights. 154. The symbol allotted to the party of the appellant was characterised by the respondent as a religious symbol. Under Article 324 the superintendence, direction and control of elections to Parliament, is vested in the Election Commission. Rule 5 of the Conduct of Elections Rules, 1961 states that the Election Commission shall, by notification in the Gazette of India and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. Rule 10(4) of the 1961 Rules aforesaid sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the High Court that the appellant committed corrupt practice in breach of Section 123 (7) of the 1951 Act is also repelled by the legislative changes and is, therefore, set aside. The order of the disqualification of the appellant is also set aside. 158. For the 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 objections of the respondent is dismissed. There will be no order as to costs. KHANNA, J. (concurring) - 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 the 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 Representation of the People Act, 1951 (hereinafter referred to as the R. P. Act) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice, Rae Bareli and the Home Secretary, Uttar Pradesh Government were utilised for the purposes of the construction of rostrums and installation of loudspeakers at various places within the constituency where the appellant addressed her election meetings as also for the purpose of making arrangement of barricading and posting of police personnel on the routes by which the appellant was to travel in her constituency and at the places where she was to address meetings, in order to give publicity to her visits and thus attract large crowds. The appellant was thereby stated to have committed corrupt practice under Section 123(7) of the R. P. Act. (4) Yashpal Kapur, election agent of the appellant and her other agents with the consent of Yashpal Kapur, freely distributed quilts, blankets, dhotis and liquor among the voters to induce them to vote for her and thereby the appellant committed corrupt practice of bribery under Section 123(1) of the R. P. Act.(5) The appellant and her election agent made extensive appeals to the religious symbol of cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P. Act. (6) Yashpal Kapur and some other persons with hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce force to be posted in connection with her election tour on February 1, 1971 and February 25, 1971; and if so, whether this amounts to a corrupt practice under Section 123(7) of the Representation of the People Act ? (4) Whether quilts, blankets, dhotis and liquor were distributed by agents and workers of respondent No. 1, with the consent of her election agent Yaspal Kapur, at the places and on the dates mentioned in Schedule A 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 allegation for bribery under Section 123(1) of the Representation of the People Act ? (6) Whether by using the symbol of the cow and calf, which had been allotted to her party by the Election Commission in her campaign the respondent No. 1 was guilty of making an appeal to a religious symbol and committed a corrupt practice as defined in Section 123(3) of the Representation of the People Act ? (7) Whether on the dates fixed for the poll voters were conveyed to the polling stations free of charge on vehicles hired and procured for the purpose by respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred or authorised 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 which was the subject-matter of issue No. 9. The respondent filed writ petition challenging the validity of the amending Act. 164. The High Court decided issues Nos. 2, 4, 6 and 7 in favour of the appellant and against the respondent. Issues Nos. 5, 8 and 10 were found in favour of respondent and against the appellant. On issue No. 9 the finding of the High Court was that the total amount of expenditure incurred or authorised by the appellant or her election together with the expenditure proved to have been incurred by the party or by the State Government in connection with the appellant's election amounted to ₹ 31, 976.47 which was sufficiently below the prescribed limit of ₹ 35, 000. The appellant as such was held not guilty of any corrupt practice under Section 123(6) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, it was accordingly 167. An appeal against the judgment of the learned Single Judge of the High Court dismissing the writ petition is pending before the High Court. 168. During the pendency of these appeals, Parliament passed the Election Laws (Amendments) Act, 1975 (Act 40 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 for Section 8A in the Act. According to the new section, the case of every person found guilty of a corrupt practice by an order under Section 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 what period, not exceeding six years. It is also provided that the person who stands disqualified may before the expiry of the period of disqualification submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period. The President shall then give his decision on such petition after obtaining the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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) whether the date of taking effect of such appointment, resignation, termination of service, as the case may be, is stated in such publication, also of 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, dismissal 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 nominated as a candidate at any election.' 10. The amendments made by Sections 6, 7 and 8 of this Act in the principal Act shall also have retrospective operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her matters relating to doubts and disputes in relation to such election include the 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 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 election may be called in question under any such law as is referred to in clause (1).(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to applied to or in relation to the election of any such person as is ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 challenged by Mr. Shanti Bhushan on the following two grounds : (1) The above constitutional amendment affects the basic structure or framework of the Constitution and is, therefore, beyond the amending power under Article 368. (2) The Constitution Amendment Act was passed in a session of Parliament after some members of Parliament had been unconstitutionally detained and thus illegally prevented from influencing the views of other members present at the time the above Act was passed. This ground, it is urged, also affects the validity of the amending Act 40 of 1975. 174. 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the respondent, could not be present because they had been illegally detained. The fact that those measures were passed by the requisite majority has not been questioned by the learned Counsel but he submits that if the above mentioned members had not been detained and not been prevented from attending the sitting of Parliament, they could have influenced the other members and as such it is possible that the impugned Constitution Amendment Act and the 1975 R. P. Amending Act might not have been passed. Mr. Shanti Bhushan accordingly asserts that the sittings of the Houses of Parliament in which the above mentioned two measures were passed were not legal sittings. Any measures passed in such sittings, according to the learned Counsel, cannot be considered to be a valid piece of 178. There is, in my opinion, no force in the above submission. The proposition that a member of Parliament cannot claim immunity from being detained under a law relating to preventive detention does not now admit of much doubt. The privileges, powers and the immunities of the members of the two Houses of Indian Parliament as well as of the Indian Legislature are the same as those of the members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not constitutionally valid because some of those Houses were prevented from attending and participating in the discussions in those Houses. It has not been disputed 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 again 181. According to clause (3) of Article 105 of the Constitution, to which a short reference has been made earlier, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, unt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the House of Representatives, 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 by Congress; and when the bill, thus attested receives the approval of the President, and is deposited 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 as follows : The proclamation by the Secretary certified that, from official documents on file in the Department of State, it appeared that the proposed Amendment was ratified by the Legislature 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 West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a constituent 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 th 187. Part (ii) of clause (4) spells out the consequence which flows from part (i) of the clause. If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election of the Prime Minister and the Speaker, it would necessarily follow that the election of the appellant who was the Prime 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. 188. The same, to some extent, appears to be true of part (iv) of clause (4). If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights which have become vested by the judgment. A statute attempting to do so has been held unconstitutional as an attempt on the part of the Legislature to exercise 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 courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting 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 judgment found to be legal, or making legal that which the judgment found to be illegal. 10. Judgment as to public right. With respect to legislative interference with the 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 judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority can make laws, including for creation of courts, they cannot, according to the submission, exercise judicial functions by assuming the powers of a super court in the same way as the courts cannot act as a super Legislature. It is, in my opini 195. We may now come to part (iii) of clause (4). By part (iii) 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) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as mentioned earlier, in effect represented the consequences 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 necessarily involved the process of going into the grounds on which her election had been assailed and holding those grounds to be either factually incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical election, so that people may be 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 representative. 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 upon the faith that election 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 defe ion 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. 199. Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge the election of the appellant, the constituent authority has declared the election of the appellant to be valid. 202. To confer an absolute validity upon the election of one particular 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 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 the election and howsoever foul and violative of the principles of free and fair elections may be the means which might have been employed for securing success in that election, the said election would be nonetheless 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 the validity of that election. Not much argument is needed to show that any provision which brings about that result is subversive of the principle of free and fair election in a democracy. T 203. The vice of declaration contained in part (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 material held the election of the appellant to be valid. Indeed, the statement of objects and reasons appended to the Constitution (Thirty-ninth Amendment) Bill makes no mention of this thing. In any case, the vice of clause (4) would still lie 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. Although the provisions of a c 206. 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 the right and remedy to challenge the validity of the election, in my opinion, is incompatible 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vern the dispute relating to the election of a person who holds the office of the Prime Minister or Speaker. As it is, what we find is that so far as the dispute relating to the election of the appellant is concerned, neither the previous law governing the election of persons 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 dispute. 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, 210. 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 amendment. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. 212. 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 appellant, 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 validity of the appellant's election. 213. 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 postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 definition. 217. One of the grounds which weighed with the High Court in declaring the election of the appellant to be void was that the appellant committed corrupt practice under the Section 123 (7) of the R. P. Act inasmuch as she obtained and procured the assistance, for the furtherance of her election prospects, of Yaspal 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. 218. According to clause (7) of Section 123 of the R. P. Act, the following 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 conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of sub-section (2) of the section if the High Court is of the 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. Returned candidate has been defined in clause (f) of Section 79 to mean, unless the context otherwise requires, a candidate whose name has been published 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 R. P. Act would in the very nature of things have to be committed by the returned candidate before his name was published under the Section 67 as duly elected, the words returned candidate in clause (b) of Section 100(1) must be taken to have been used with a 220. Reference has also been made by Mr. Shanti Bhushan to observation on pages 222-3 of Vol. 14 of Halsbury's Laws of England, Third Edition, according to which a candidate at a general election may be guilty of treating even though the treating took place before the dissolution of Parliament and consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers of the U. P. Government, particularly the District Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel Department for construction of rostrums and arrangement of supply of power for loudspeakers in the meetings addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her election prospects. It is not disputed that what was done by the above mentioned officers was in pursuance of official directions and in the discharge or purported discharge of the official duties. This is indeed clear from letter dated November 19, 1969 from the Government of India, Ministry of Home Affairs to all State Governments wherein there is reference to rule (6) of the Rules and Instructions for the Protection of the Prime Minister and it is state As the security of the Prime Minister is the concern of the State all arrangements for putting up the rostrums, the barricades, etc. at the meeting place, including that of an election meeting will have to be made by the State Government concerned. . . . started checking (Mrs.Joshi) In the case of election meetings, all expenditure on police, setting up of barricades and taking lighti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso 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. 224. Mr. Shanti Bhushan during the course of arguments made it plain the apart from his submission with regard to the validity of Act 40 of 1975, his objection relating to the applicability of Act 40 of 1975 was confined to two matters, namely, the connotation of the word candidate and the meaning to be the attached to official duty. Both these objections have been found by me to be not tenable. I would, therefore, hold that subject to the question as to whether the provisions 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 hold good for declaring the said election to be void. 225. 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. It was the case of the respondent that the appellant and her election agent made extensive appeals to the religious symbol of cow and calf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lections. Retrospective operation of the amending Act, according to the learned Counsel, has the effect of condoning what was at the time it was committed a corrupt practice. 227. I have given the matter my earnest consideration, and am of the opinion that there is no substance in the above contention. A Legislature has, except in a matter for which there is prohibition like the one contained in Article 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. Essentially it is a matter relating to the capacity and competence of the Legislature. Although most of the laws made by the Legislature have 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 principle 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 Act passed by the provisions shall have to be given effect to and the fact that the operation of the Act is prospective or retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Knata Kathuria v. Manak Chand Surana (supra) the dispute related tot he 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 Rajasthan 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 19(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 the pendency of the appeal, Rajasthan Act 5 of 1969 was passed declaring 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 Act was made retrospective and removed the appellant's disqualification retrospectively. On the question as to g that the appellant held an office of profit. All the five Judges constituting the Constitution Bench were, however, unanimous on the point that the Act of 1969 had removed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of Parliament - Seventeenth Edition (1964)] - 'After the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of attendance at a tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn Elections (Validation) Bill was introduced to validate the irregular elections (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).'We have also noticed two earlier instances of retrospective legislation, e.g. the House of Commons (Disqualification) Act, 1813 (Halsburry's Statutes of England p. 467) and Section 2 of the Re-election of Ministers Act, 1919 (ibid p. 515) Great stress was laid on the word 'declare' in Article 19(1) (a), but we are unable to imply any limitation on the powers of the Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to give instances to prove that they have frequently done so; even going so far as to restore the heritable quality to blood which had been deprived of its virtue by acts of attainder. 232. I am not impressed by the argument that retrospective operation of the relevant provisions of Act 40 of 1975 affects free and fair elections. The said 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 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 dealt with the provisions of Section 3 of the Punjab Pre-emption (Repeal) Act, 1973, according to which on and from the date of commencement of that Act, 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary while dealing with corrupt practice relating to elections to specify the period within which the impugned act, alleged to constitute corrupt practice should have been done. As a result of the amendment, the Legislature has fixed the said period to be as from the date of nomination instead of the period as from the date on which the candidate with the election in prospect began to hold himself out as a prospective candidate. It is common experience that the date from which a candidate holds himself out as a prospecti 236. 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 of the resignation is stated in the publication in the Official Gazette, it shall be that date. Similarly, in the case of appointment of a person, the date of taking effect of such appointment shall be the date mentioned in the publication in the Official Gazette in case such a date is stated in such publication. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic interest is not allowed to degenerate into a cloak for furtherance of the personal interests of a candidate in an election. The discharge o 238. One other change brought about by Act 40 of 1975 is the addition of an explanation in Section 77 of the R. P. Act. According to the new explanation, 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 belonging to any of the classes mentioned in clause (7) of Section 123 in the 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 election incurred or authorised by a candidate or by his election agent for the purposes of Section 77(1). The validity of the above explanation in a great measure is linked with the validity of the new proviso to Section 123(7) of the R. P. Act, and for the 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 necessary to dilate upon this aspect because even without invoking 239. Argument has also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs addressed by the appellant in the constituency on February 1 and 25, 1971 .. ... over ₹ 1, 32, 000 (vii) Expenses on arrangement of loudspeakers for the various election meetings of the appellant addressed on February 1 and 25, 1971 .. ... over ₹ 7, 000 (viii) Expenses on motor transport for the conveyance of the appellant and her party to the place of her election meetings on February 1 and 25, 1971 .. ... over ₹ 2, 000 The High Court held that the respondent had failed to prove the first five times. As regards the expenses for the erection 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 ₹ 1, 600. The total expenses of the ten rostrums thus came to ₹ 16, 000 and the same, it was held, was liable to be added to the amount shown in the return of election expenses of the appellant. The amount of ₹ 16, 000 included the money paid by the District Congress Committee as its share of the cost of rostrums. Regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer positively so that the election work of all the three parliamentary constituencies which is going on, on behalf of District Congress Committee, may not suffer. On February 25, 1971 Yashpal Kapur addressed a letter to the District Officer, Rae Bareli, stating that the 23 vehicles in question had been taken by the District Congress committee, Rae Bareli, for the three parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat. The District Officer was requested to release the 23 vehicles without delay. Yashpal Kapur also enclosed with that 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, Amethi 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 243. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced by the respondent by a process akin to guess work. It is no doubt true that by using a vehicle for the furtherance of the prospects of candidates in more than one constitue s 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 incurred in connection with that jeep 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 this jeep was used also for the general Congress propaganda in other constituencies. As we stated, the jeep remained in Chalet and at Mubarakpur. No doubt Chalet is the home town of the returned candidate and his office was situated at Mubarakpur but that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 35, 000. It has been pointed out that a cheque for ₹ 70, 000 was sent by the Provincial Congress Committee to Dal Bahadur Singh, President of the District Congress Committee, Rae Bareli, and the same was credited in Dal Bahadur Singh's account after deducting of the bank charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount ₹ 40, 000 and ₹ 25, 000 on March 4 and 6, 1971, respectively nearabout the days of polling. It is urged that the said amount must have been spent for the purpose of the elections. There was no reference to the said amount of ₹ 70, 000 in the petition. There is also no reference to the amount of ₹ 70, 000 in the judgment of the High Court or in the grounds of appeal. As such, I am of t Learned Counsel for the petitioner urged that from the evidence on record, it transpires that expenditure was also incurred on the telephone connection and telephone charges; on the meetings addressed by Sri Yashpal Kapur within the constituency during the period of election; on the election material viz., pamphlets, posters, etc. and on the lighting arrangements made for some meetings addressed by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this controversy cropped up a number of times, it seems apposite that before I conclude I should deal 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 it relates to a fundamental right and is contained in Part III of the Constitution. It was also held that a constitution amendment under 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 that the I am further of the opinion that amendment of the 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 Constitution survives without loss of identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to fundamental rights . Proposition (vii) of the summary of my conclusions on page 758 of the judgment also bears it out and the same reads as under : (SCC p. 824, para 1537) (vii) The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it 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 articles 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 fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles . 252. It has been stated by me on page 685 SCC(p) 767 ) 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 the ground of religion only cannot likew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , set aside the judgment of the High Court in so far as it has found the appellant guilty of corrupt practice under Section 123(7) of the R. P. Act and has declared her election to the Lok Sabha to be void. The order that the appellant shall accordingly stand disqualified for a period of six years as provided in Section 8A would also consequently be set aside. The election 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 changes made in law during the pendency of the appeal, the parties are directed to bear their own costs throughout. MATHEW, J. (concurring) - In the election petition filed by the respondent in Civil Appeal No. 887 of 1975 (hereinafter referred to as 'respondent'), seven charges of corrupt practice were made against the appellant therein (hereinafter called the 'appellant') and it was prayed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 an election petition referred to in clause (b) of Article 329 in respect of his 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 election may be called in question under any such law as is referred to in clause (1). (4) No law ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic structure of the Constitution, namely, free 262. Counsel also submitted that equality and rule of law are essential features of democracy; that clause (4), by dispensing with the application of the law relating to election petition and matters connected therewith to the appellant, made an unreasonable classification among persons similarly situated with reference to the purpose of the law. 263. The further submission was, that separation of powers is a basic structure of the Constitution and that if it be supposed that the amending body ascertained the facts regarding the election of the 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 only in the passing of a judgment or sentence which can never be characterized as a law, let alone a law relating to the Constitution of India. 264. In His Holiness Kesawananda Bharati Sripadagalavaru v. State of Kerala (hereinafter referred to as 'Bharati's case'), a majority of seven judges held that the power conferred under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d apply the relevant norm, the declaration of the validity of the election was a fiat of a sui generis character of the amending body. 268. The concept of democracy as visualized by the Constitution presupposes the representation of the people in Parliament and State 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 of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a 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, Article 324 with the second and Article 329 with the third requisite (see N. P. Ponnuswami v. Returning Officer, Namakkal Constituency). 269. Article 329(b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these judges are selected. The House has not cognizance of these proceedings until their determination, when the judges certify their determination. The judges are to make a report in any case where a charge has been made in the petition of corrupt and illegal practice having been committed at an election; and they may also make a special report on any matter arising which they think should be submitted to the House. 272. Article 1, Section 5(1) of the Constitution of the United States of America provides that each House shall be the judge of the elections, returns and qualifications of its own members. 273. In whichever body or authority the jurisdiction is vested, the exercise of the jurisdiction must be judicial in character. This Court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Article 329(b) (see Durga Shankar Mehta v. Thakur Raghuraj Singh). 274. In Barry v. United States Ex. Rel. Cunningham, it was held that in exercising the power to judge of the election returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is, those which the parties actually have at the inception of the suit and not those which it may be thought they ought to have; it is concerned with the past and the present and not with the future. 278. 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 binding on all persons over whom the Legislature exercises legislative power : the Judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. This view of the distinction between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompromisingly 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 experimental Legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the Legislature have as yet found it convenient or establish any. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kind of authority which they are exercising. 282. The point to be kept in mind is that the amending body which exercises the constituent power of the legal sovereign, though limited by virtue of the decision in Bharati's case (supra), can express itself only by making laws. 283. The distinction between constitutional 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 touchstone of Constitution. But constitutional law is as much law as ordinary law. A Constitution cannot consist of a string of isolated dooms. A 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 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. 284. According to Blackstone, a law and a particular command are distinguished in the following manner : a law obliges generally the members of a given community, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of which they have been created. He 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. 289. It may be noted that Kelsen made no distinction between law-creation and law-application. According to him, every act of applying the law involved the creation of norms. In his view, there was not 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. 290. 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. 291. The mere fact that an Act to indemnify A or and Act sanctioning a pension to the 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. 292. J. C. Cart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a limited number of individuals, the parties to the case. He disagreed with Dr. Kelsen's statement that the judicial decision is an individual legal norm as the expression 'individual legal norm' is a self-contradiction. 296. To Friedmann, the most essential element in the concept of law is a degree of generality : The first desideratum 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. Friedmann was of the view that a community which had no general prescription at all, but only an infinite multitude of individual commands, would not be regarded as having a legal order. It would dissolve into millions of individual relationships. 297. For the purpose of this case I accept as correct the statement of Blackstone already quoted and approved by the Privy Council in Liyanage v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiting trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate the three judges to try the appellants without a jury. 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 provis 301. The Privy Council said in the course of their judgment that the pith and substance of the law enactments was a legislative plan ex post facto to secure the conviction, that although legislation ad hominem 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 enactments and that it was fatal to their validity. They further said that the true nature and purpose of these enactments were revealed by their conjoint impact on the specific proceedings in respect of which they were designed, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 law 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 despotic power and that would damage the democratic structure of the Constitution. 306. Quite apart from it, 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. 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. It can only amend the Constitution by passing a law of the rank of which the Constitution is made of. 307. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become vacant under its provisions by reason of his having a pecuniary interest in a contract with the Government. In 1928, after the action had been brought but before its trial, 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. It also amended the Order of 1923 so as to except the officer 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 to 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 the proceeding 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 pending proceedings. The decision would be helpful here onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance 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 314. This Court held that Section 3(1) of the Ordinance effectively removed the defects in the electoral rolls found by the High Court by its judgment and that it successfully cured the invalidity of the electoral roll and of the elections to the Cuttack municipality. 315. 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 retrospective effect for the old one and the basic facts were all taken to have been admitted or not controverted. If the facts are not admitted, 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 amendment. 316. Counsel for the appellant also brought to the notice of the Court certain election validation Acts passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s own words would show that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted. In Federalist No. 47, James Madison suggests that Montesquieu's doctrine did not mean that separate departments might have not 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. 320. The Judiciary, said the Federalist, is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no direction 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 Montesque said, the Judiciary is in some measure next to nothing. If he realised the relative weakness of the Judiciary at the time he wrote, it is evidence of his vision that he appreciated the supreme importance of its independence. There is no liberty, he said, if the judicial power to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 324. Lord Coke objected to the exercise of judicial power by James I for pragmatic reasons. Much of what Lord Coke said can be applied to Parliament when it seeks to exercise that power in its constituent capacity. 325. A sovereign in any system of civilized jurisprudence is not like an oriental despot who can 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 and 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 administering '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 ordinary law can be pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 structure. The only logical basis for supporting the validity of Articles 31-A, 31-B and the first part of 31-C is that Article 14 is not a basic structure. 331. Counsel for the respondent, however, submitted that even if Article 14 does not pertain to basic structure, equality is an essential feature 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 unreasonable 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 enjoined upon persons of a specified kind, they enjoin uniform behaviour in identical cases; that to fall under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntains the balance between the two; and justice has a variable content. Dicey's formulation of the rule of law, namely, the absolute supremacy or predominance of regular law, as opposed to the influence 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. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness. There has been no government or legal system in world history which did not involve both rules and discretion. It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of laws and of men. Jerome Frank has said : This much we can surely say : For Aristotle, from whom Harrington derived the notion of a government of laws and not of men, that notion was not expressive of hostility to what to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. 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 concept having its habitat within the four corners of the constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty 342. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the equal protection clause of the Fourteenth Amendment to the American Federal Constitution. In State of Bengal v. Anwar Ali Sarkar, Patanjali Sastri, C.J. observed that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great concepts set out in the preamble are delineated in the various provisions of the Con 346. 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 an social; liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them. .... (N) o political terms have been so subjected to contradictory 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 communist States of Eastern Europe, the Chinese People's Republic, North Korea and North Vietnam all call themselves democracies. So does Nasser's Egypt; so does General 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 . Definitions are important, for, they are responsible in the last analysis for our image of democra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of adult suffrage. Articles 327 and 328 provide for 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 electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. The validity of any law relating to the delimitation of constituencies or the allotment of seats to the constituencies, made or purporting to be made under Article 327 or Article 328 shall not 349. 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 is found that the task of writing the legislation on the subject has been committed to Parliament and State Legislatures by the Constitution, is it competent for a court to test its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to an Act on the ground that the basic structure of the Constitution has been damaged or destroyed by its provisions not constituted by the fundamental rights abrogated or taken away. In other words, if by taking away or abridging the fundamental rights, the basic structure of the Constitution is damaged or destroyed, then, according to the 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 reason not resulting from the taking away or abrogation of the fundamental right. To put it differently, even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would 354. Shelat and Grover, JJ. have said in their judgment that the Twenty- ninth Amendment is valid, but the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the constitutional structure or denudes them of their identity will have to be examined when the validity of those Acts comes up for consideration. Similar observations have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or right taken away or abrogated constitute or constitutes a basic structure. 359. Counsel for the respondent then contended that retrospective operation 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 cannot thereafter substitute another set of laws and say that those laws must be deemed to have been in operation at the time when the election was held and the result announced, as that would lead to inequality, injustice and unfairness. 360. 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 cause hardship to some persons or other. This is inevitable; but that is no reason to deny to the Legislature the power to enact retrospective law. In the case of a law which has retrospective effect, the theory is that the law was actually in operation in the past and if the provisions of the Acts are general in their operation, there can be no challenge to them on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the case of a detention under an emergency regulation. 366. In England, it was taken as settled that parliamentary roll is conclusive of the question that a bill has been passed by both Houses of Parliament and has received royal assent and no court can look behind the roll as such an inquiry would be an interference with the privilege of Parliament. Lord Campbell said in Edinburgh Dalkeith Ry. v. Wauchope : I think it right to say a work or two upon the point that has been raised with regard to an Act of Parliament being held inoperative by a court of justice because the forms prescribed by the two Houses to be observed in the passing of a Bill have not been exactly followed...... I cannot but express my surprise that such a notion should have prevailed. There is no foundation for it. All that a court of justice can do is to 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 in Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 order to decide the question whether a measure passed by it answers the description of a statute or an Act and that parliamentary roll, if such a thing exists, is not conclusive. 371. As to parliamentary 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 Stationery Office, which are signed by the Clerk of the Parliaments and regarded as the final official copies. One is preserved in the Public Record Office and one in the library of the House of Lords . 372. 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, even if there is any irregularity in the procedure in the passing of the statute, it is not open to a court to question its validity. But this is distinct fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason. 377. The suspension of the remedy for the enforcement of fundamental rights by the order of the President under Article 359 is dependent upon a valid proclamation of emergency under Article 352. If a situation arose which authorized the President to issue a proclamation under Article 352, he could also suspend, under Article 359, the remedy 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 fundamental rights is unconstitutional, it is impossible to hold that the President has, in any way, illegally prevented the release of these members 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. In other words, the President, in performing his constitutional function under these articles has 378. 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 candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 word 'candidate' in Section 123(7) in the same manner. It is the context that gives colour to a word. A word is not crystal clear. Section 79 of the Act indicates that the definitions therein have to be read subject to the context. 383. The Legislature must fix some point of time before which a person cannot be a 'candidate' in an election, and, a wide latitude must be given to the Legislature in fixing that point. In Union of India v. M/s. Parameswaran March Works, this Court observed : (SCC p. 311, para 10) The choice of a date 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 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 unless we can say that it is very wide of the reasonable mark. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hru Gandhi, the Prima Minister of India (hereinafter referred to as 'the Original Respondent'). 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 contesting respondent. 388. Before the election case, instituted on April 24, 1971, could be decided by the trial Court, an explanation was added to Section 77(1) of the Act. It had some bearing on questions relating to the expenses incurred on the original respondent's election, sought to be raised by the election- petitioner, but, on findings of fact 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-petitioner is unable to dislodge the trial Court's findings on election expenses. Other amendments were made by the Election Laws (Amendments) Act, 1975 No. 40 of 1975 (hereinafter referred to as the 'Act of 1975'), notified on August 6, 1975, after the decision of the case by the learned Judge of the Allahabad High Court on June 12, 1975 and after the filing of the appeals before us. These amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Thirty-ninth Amendment. Speaking for myself, 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 Thirty- ninth amendment and of the Acts of 1974 and 1975, but also in the wider interests of justice which are bound to be served by the vindication of the case of the party which should, on merits, win. Elementary considerations 392. Citizens of our country take considerable pride in being able to challenge before superior courts even an exercise of constituent power, 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 constitutional validity of either an ordinary statute or of a constitutional amendment, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court to be vitiated, it did not need to be validated at all. 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 pr 395. 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 judgment, 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 sue the language of Section 116A(4) of the Act, 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 conditions annexed. It was not a conditional stay. Indeed, having regard to the nature of the 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) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d forces, to enable her to address election meetings on February 1, 1971 and February 25, 1971, and if so, whether this constituted a corrupt practice under Section 123(7) of the Representation of the People Act ? 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, loudspeakers and barricades to be set up and for members of the police force to be posted in connection with her election tour on February 1, 1971 and February 25, 1971; and, if so, whether this 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Issues Nos. 5, 8 and 10, decided in favour of the election- 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 and 3 are connected with and subsidiaries of the initially framed issues numbered 1 and 3. 400. The learned trial Judge had accepted the election-petitioner's case of 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, deputed to serve in the Prime Minister's Secretariat as an Officer on Special Duty, had held his post until January 25, 1971, when his resignation, tendered on January 13, 1971, was accepted by the President of India with effect from January 14, 1971, by means of a notification published on February 6, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p in paragraph 5 of the petition is : Smt. Indira Nehru Gandhi obtained and procured the assistance of the said Shri 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 assistance was obtained and procured......... The said Shri Yashpal Kapur on the direction of Smt. Indira Nehru Gandhi organized the electioneering work for her in the constituency during the period commencing from December 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 procurement of assistance of Shri Kapur through a third person is set up although 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 government officers, but no directions or orders given by anyone are mentioned there. Issue No. 1 shows that the case which was put in issue here was whether the governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) (b) further emphasises the position that a corrup 406. As I read the petition, I find only the first of the three types of cases mentioned above set up exclusively on issue No. 1 because there are no particulars there which could apply to the other two types of cases. Obviously, the case set up was not of a corrupt practice by some act of a person to which the candidate became a party by merely giving consent in which case the circumstances from which the consent was to be inferred had to be indicated. It was a case of a direction 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 direction 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 the particular 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 distinctions should have been borne in min 407. The definition given above in Section 123(7) meant, on an ordinary and natural interpretation of words used, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btaining and procuring as regards issue No. 3. These are enough to denote the ingredients of a mens rea. But, one will search the evidence in vain for any indication of a mens rea or guilty intent on the part of the original respondent or of her election agent when she had appointed one. As regards both issues Nos. 1 and 3, the 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, a decision with whose ratio decidendi I have never, with due respect, felt happy in so far as it meant 411. Let me here quote the exact language used by the trial Judge himself in giving his findings on the first part (relating to December 27, 1970 to January 13, 1971) of issue No. 1 of the first set of issues combined with the issue No. 1 of the additional issues, both issues, for some inexplicable reason, being identically worded. The learned Judge said : Learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 (See : e.g. Smt. Om Prabha Jain v. Charan Das). 413. The learned Judge dealt with evidence on issue No. 1 relating to the activities of Shri Yashpal Kapur by dividing it into three periods : (1) from December 12, 1970 to January 13, 1971, when Shri Kapur had not resigned from government service; (2) from January 14, 1971 to January 25, 1971, the period after Shri Kapur's resignation upto its acceptance by the President of India evidenced by a notification dated January 25, 1971; (3) from January 26, 1971 to February 6, 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 February 1, 1971 made no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was suspected, without the slightest foundation 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 Nankau had conceded in cross-examination that Sarju Prasad had accompanied him to the Shaheed Mela, pressure was brought to bear on Sarju Prasad (RW 12) by Gaya Prasad Shukla in order to make him appear as a witness in the case and give evidence to contradict the testimony of Nankau. It is true that in his re-examination Sarju Prasad (RW 12) admitted that on the date on which he was examined as a witness in the case the school was being run by the Government under the control of the District Basic Education Officer. However, the association that Gaya Prasad Shukla had with the Pathashala in his capacity as Adhyaksha, and consequently with Sarju Prasad, who was a teacher in that Pathashala, could not have been wiped off overnight merely because the school was taken over by the Government to be run under its own officers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the better of his prudence that he, believing that a publicly made gesture of his loyalty was needed on this particular occasion, cast all caution to the winds and, while paying 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 those local leaders who, in addition to Shri Gulzarilal Nanda, a former Minister, are said to have spoken there to the same effect, were not enough. What follows ? It is here that we find the weakest link in the misty and fanciful chain of the learned Judge's logic. Where was the 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 law relating to scope of author 420. 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 guilt, they had to point in one direction only and in no oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Officer on Special Duty in the Prime Minister's Secretariat, in 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 that of the Prime Minister of the numerically largest democracy in the world can possibly discharge his or her duties towards the public satisfactorily without the aid of such officers. Naturally, as the Prime Minister was contemplating standing for election 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 representations from Rae Bareli. He also said that he had, from time to time, 424. Again, without any contradiction from any evidence whatsoever, his statement, 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 election. The Prime Minister's replies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est reason for anyone 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 frankly stated that his ambition was to enter political life. In any case, the motives of Shri Kapur were not on trial. If such assistance as he may have rendered was entirely volun 427. Shri P. N. Haksar was aware of and cited the applicable rule for a resignation by a temporary government servant, as Shri Kapur was, and stated also the practice followed, in his experience, in such cases. He, presumably thought that the resignation was effective from January 14, 1971. Shri Kapur also acted upon that assumption and in that belief. The Prime Minister, who could not be expected to examine suo moto the question whether Shri P. N. Haksar and Shri Kapur were right in their beliefs about the effectiveness of the resignation, assumed that everything was alright. In any case, there could not possibly, on these facts, be any mens rea on her part. 428. The learned Judge having accepted, on the unimpeachable evidence of the date of notification of January 25, 1971, published in the offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless otherwise agreed to by the Government and by the Government servant : Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances 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. 431. The learned Judge had referred to Halsbury's Laws of England, Vol. V (Simonds's Edn.) p. 61, where it was laid down that 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 person elected to a public office to act in that office in public interest . He also referred to an American case, Edwards M. Edwards v. United States, to the effect that only the appointing could have accepted the resignation of an 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 refusal to perform the duties of his office. The desire or wish of the holder of the office had to give plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal 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, resignation, termination of service, dismissal or removal from service, as the case may be, and (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 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, dismissal or removal from service, such person ceased to be in such service with effect from the said date. 434. I find that this amendment, which was made retrospective, by Section 10 of Act 40 of 1975, makes the legal position still clearer. The learned Counsel for the election-petitioner had assailed the validity of this amendment on the ground that powers conferred by it upon the Government are bound to be abused by those who hold the reins of Government. I am afraid I am unable to see any force in this contention. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's witness themselves, Shri Kapur could do nothing whatsoever in furtherance of the election of the original respondent at this meeting. 3. On January 19, 1971, Shri Kapur is said to have addressed 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 January 18, 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 (PW 42) for the election- petitioner despite the 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 who organised the function. 4. It was alleged that Shri Kapur on January 19, 1971, again in the company of Prof. Sher Singh, the Central Government Minister, mentioned above, attended a meeting held in Lalganj. So far as this particular allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the original respondent, is that Shri Kapur did, whatever he did, entirely on his own initiative and in his private and individual capacity, without the slightest solicitation, request, or suggestion from the original respondent who did not even know what he was doing at Rae Bareli. And, this evidence, being uncontroverted, could not be rejected. In fact, it was not rejected by the trial Court. It was ignored by it presumably under erroneous belief that it was not material. 437. There is no evidence whatsoever that Shri Kapur was constructed a sort of general de facto agent of the Prime Minister even before he became her election agent on January 2, 1971. Indeed, such a case, that Shri Kapur was constituted a de facto agent of the Prime Minister, and, if so, what was the scope of his authority, was not set up in the petition and was not put in issue. Therefore, there is no finding on it by the learned Judge. Could the Court then, without any proof of any specific request or solicitation or even knowledge of or consent to the doing of any particular acts Shri Kapur may have done in this period make the Prime Minister liable for them in any way? I think not. The election-petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 sufficient. 440. After January 14, 1971, the Prime Minister, like everyone else concerned, obviously believed that Shri Kapur was no longer a government servant. As I have already pointed out, this was the legally correct assumption. 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 Kapur's resignation became effective from January 25, 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 the 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 February 1, 1971, according to Shri Kapur's evidence, was the result of suggestion of Shri Dal Bahadur Singh at Rae Bareli, apparently during the Prime Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted : It is wrong to assume that while giving the reply marked 'B' in the transcript (Ext. 132) I conveyed that I was not changing my constituency from Rae Bareli at all and emphatically held out that I would contest election again from Rae Bareli. In my opinion there is no basis for this assumption. 445. 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 were entreaties or offers to her from other constitutencies 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 December 29, 1970. The learned Judge also referred to paragraph (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 and a final decision in regard to the constituency was announced by the All India Concress Committee only on January 29, 1971, and she only held herself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of maximum mud slinging . The learned Judge pointed out that the Prime Minister admitted, in her evidence, that she could have said this in her speech at Coimbatore. She was not asked whether this amounted to holding herself out as a candidate from Rae Bareli constituency. If such a question had been asked there is little doubt that she could have explained the statement by the context in which it was made, just as she had given the precise meaning of her statement of December 29, 1970, in the context in which it was made. Apparently, the context of the 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 oth of March, 1971. Similarly the context of the question of December 29, 1970, put to the Prime Minister at a conference at New Delhi, was that the members of the opposition parties thought that she may be contesting from Gurgaon. In the light 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 abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. It is significant that despite the large number of speeches and statements the Prime Minister must have made throughout the country, in this period, not a single statement made by her could even be cited in which she had said before February 1, 1971, that she was standing as a candidate from the Rae Bareli constituency. It is possible, as I have indicated above, that this may be a part of the political game or permissible party tactics so as to keep opposition parties guessing. It seems to me that the learned Judge was overlooking the context, the probabilities, the natural course of events in such a case, the legal and logical relevance and effect of what he thought was decisive, and finally, the importance of the statement of the Prime Minister herself 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 conversation which could shake her stand, that her final decision and unequivocal act was the filing of a 452. In S. Khader Sheriff v. Munnuswami Gounder, this Court said (at p. 473) : When, therefore a question arises under Section 79(b) whether a person had become a candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 . 457. Learned Counsel for the election-petitioner contended that this amendment read with Section 10 of the Act 40 of 1975, would retrospectively alter the rules of the game and would be destructive of the concept of free and 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 nomination. 458. 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 (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 candidate on or after the day of the issue of the writ of the election...... The English defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructing rostrums and the supply of power for loudspeakers, on the instructions given by the State Government, was a corrupt practice struck by the provisions of Section 123(7) of the Act. As I have already indicated, by 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 account of provision of the Air Force pla It has been noticed that the rostrum arrangements are not always properly made because the hosts are sometimes unable to bear the cost. As the security of the 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 State Government concerned. 462. The Government of India had also issued a letter (Ex. A. 21) dated November 19, 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 specifications laid down with due regard to security considerations. The letter also directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, what is due to the occupant of the office of the Prime Minister must be withdrawn when the same person acts as a candidate. On a similar argument, with regard to use of helicopters and aeroplanes, the learned Judge himself had refused to acknowledge what amounts to a separable legal personality of a candidate in the eyes of law. 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 connected with the office or capacity of the Prime Minister and that the latter was exclusively meant for her use in the capacity of a candidate. Even if we were to recognize this distinction between the 466. 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 in 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 candidate who undoubtedly enjoys certain advantages which an ordinary candidate cannot have. It is as futile to complain of such a distinction made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mens rea as well as actus reus on the part of either the candidate herself or her election agent had to be given. This was not done. The election petition was, therefore, liable to be rejected on this ground alone. 471. 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 Parliament to the need for a clarification of the law which became necessary. It is not possible to object to the movies 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 Section 123(7). The defect may be due to a possible ambiguity. In order to clarify the law, Section 7 of the Act 40 of 1975 inserted a proviso at the end of Section 123(7), which runs 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 becomes immune from such an attack. After the practically unanimous opinion of this Court in Kesavananda Bharati's case (supra), that such an immunisation of an enactment from an attack based upon 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 backdoor of a basic structure of the Constitution. Moreover, I am unable to see how this particular amendm 476. Before I proceed further, I may mention that I have dealt with the findings of the learned Judge, assailed by the original respondent's Appeal No. 887 of 1975, perhaps in greater length and depth, after going through the evidence in the case, than I had set out to do. I have done so for several reasons. Firstly, I think that the nature of the attack upon the bona fides 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 opinion, be satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adduced. Indeed, election petitions were corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which are concluded. This Court also said there (at p. 672) : We regard it as extremely unsafe, in the present climate of Kilkennycat election competitions and partisan witnesses 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. This Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life . 479. I will now take up the election-petitioner's Cross Appeal No. 909/75. Learned Counsel for the election-petitioner, very properly and frankly, conceded that he could not successfully assail the findings of the learned Judge on issues Nos. 4 and 7 relating to alleged distribution of quilts, blankets, dhotis, and liquor by workers of the original respondent or the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of other amendments, the amendment was also challenged on behalf of the election-petitioner on the ground that it could be misused. I am afraid that attacks made on such sweeping suggestions of likelihood of misuse, in future, cannot possibly succeed. It has been repeatedly laid down by this Court that the possibility of misuse of a power given by a statue cannot invalidate the provision conferring the power. (See : Dr. B. N. Khare v. State of Delhi; State of West Bengal v. Anwar Ali Sarkar; R. K. Dalmia v. Justice Tendolkar; T. K. Musaliar v. Venkitachalam; Chitralekha v. State of Mysore; M. R. Deka v. N. E. F. Rly). The occasion to complain can only arise when there is such alleged misuse. Even the possibility of such misuse of this power by so responsible an official as the Election Commissioner cannot be easily conceived of. 484. It was submitted that the Election Commissioner's decision on this question was unreasonable. The best class of evidence as to what is and what is not to be reasonably regarded as religious symbol, according to the customs, mores, traditions, and outlook of the people of a country at a certain time consists of contemporaneous decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diture 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 respondent's election, which was not shown as part of her election expenses. Is the successful candidate bound, under the law, to show this also as part of election expenses? 488. The question assumed special importance after the decision of this Court in Kanwar Lal Gupta v. Amarnath Chawla, where a Division Bench of this Court observed : (SCC p. 656, para 11) Now, if a candidate were to be subject to the limitation 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 connection with his election, the object of imposing the ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. The mischeif sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al party itself must exercise some control over the expenses of the candidate 491. The difficulty which faces the election-petitioner at the outset in taking up a case of implied authorisation, on the strength of anything observed or decided by this Court in Kanwarlal 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 the original respondent and were merely being spent by the party or its workers for the election under consideration. No facts or circumstances were at all indicated either in the petition or in evidence from which such inference were possible. On the other hand, what is sought to be pointed out now in the case before us is that a sum of ₹ 70, 000 was shown to have been received from some undisclosed sources by Shri Dal Bahadur Singh, the President of District Congress Committee at Rae Bareli, and that a large part of it was show 492. It is true that the case set up is that the prescribed limit of expenditure wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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) Ordinance, 1974; (b) any judgment, order or decision of a High Court whereby the election of any such candidate has been declared 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 decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement . 495. It appears to me that both parties to the case now before us were under the impression that the expenses incurred by a political party over its candidate's election was outside the prescribed limit which operated only against expenditure by a candidate himself. Hence, the petitioner had not pleaded expenses incurred by the party of the original respondent as expenses authorised by the original respondent. The test of authorisation would naturally be the creation of a liability to reimburse whoever spends the money and not necessarily the provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned by Shri Kapur, was a rather urgent request made to him by Shri Dal Bahadur Singh, on February 24, 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 Kureel, who was contesting the election from Ram Sanehi parliamentary constituency. He, therefore asked Shri Kapur, the election agent of the original respondent, to send a letter to the District Officer, who had refused to released the vehicles without the endorsement of the candidate concerned or his her election agent. 498. It is clear from the above-mentioned correspondence that Shri Kapur was not speaking on behalf of the other two candidates of adjoining parliamentary constituencies. He was not even undertaking to pay anything for the use of the vehicles on behalf of the original respondent. Shri Kapur also did not state that these vehicles were needed for work in the original respondent's constituency. He merely forwarded the letter with a request for compliance with what Shri D. B. Singh wanted. Shri Dal Bahadure Singh was concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erially affected . 502. However, as I have already held, there is no case or evidence before us that the Congress party was the agent, express or implied, of the original respondent or acting as the channel through which any money whatsoever was spent by the original respondent. The petition could not possibly succeed on the ground of exceeding election expenses. On the other hand, on the findings given by me above, the expenses on the construction of rostrums were also erroneously added by the learned Judge. In fact, it seems that other two items mentioned there were also wrongly added. Expenses of the installation and use of loudspeakers and the power supplied were certainly shown to have been borne by the Congress party itself. It is true that when elections of persons in the position of the Prime Minister or even of ministers, whether in the Central Government or a State Government, take place, a number of people come forward to either give or thrust their supposed aid in the election. It may be impossible for the candidate 503. The third and the last and a subsidiary submission on behalf of the election-petitioner, on election expenses, was that, Shri Dal Bahadur Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 procedure or the conduct of business, 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 . 507. 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 Thirty-ninth Amendment, so as to be present in Parliament , to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122 which bears 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 provision of the Constitution which has been pointed out to us providing for any notice 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 election including the 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 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 election may be called in question under any such law as is referred to in clause (1).(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, in so far as it relates to election petitions and matters connected therewith, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular way. According to learned Counsel, the amending bodies had 513. All the contentions of learned Counsel for the election-petitioners, apart from the alleged procedural defect in amending the Act of 1951 and the Constitution when a number of opposition members of Parliament are detained under the preventive detention was, already dealt with by me, seemed directed towards producing two results either simultaneously or alternatively : firstly, to persuade us to hold that the constituent power had been exceeded or sought to be utilised for extraneous purposes falling outside the purview of Article 368 of the Constitution altogether; and, secondly, to convince us that the effects of the fourth clause of Article 329A must be such that, if this purported addition to our Constitution was upheld, the basic structure or the basic 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. It was submitted that the majority view in Kesavananda Bharati's case (supra), which w 514. We have heard the learned Attorney General and the learned Solicitor General of India, in defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assumption that the High Court had rightly held the original respondent's election to be invalid by applying the provisions of the 1951 Act, had considered it necessary to validate what really was invalid according to the 1951 Act. In view of what I have already held on merits, such an assumption, if it was there at all, could only be based on a misconception. 517. The conflicting points of view, advanced in support of the amendment, enabled the election-petitioner's Counsel to find support for his contention that the impugned clause (4) obviously meant that a considered judgment on, inter alia, disputed question 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 constituent power by the constituent bodies, consisting of the two Houses of Parliament and the ratifying Legislatures of the various States. He urged that the alternative contentions of Mr. Kaushal constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 organs of the Government 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 the Constitution is framed laying down the distribution of the powers in the different organs such as the legislative, executive and the judicial power. The constituent power springs as the fountainhead and partakes of sovereignty and is the power which creates the organ and distributes the powers. Therefore, 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 powers is based. 520. The theory advanced before us may have been designed to escape the logical consequences of the majority view in Kesavananda Bharati's case (supra) which we cannot, sitting as a bench of five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power in some undifferentiated or raw and unfettered form, operating from above and outside the Constitution, learned Counsel, supporting the impugned fourth clause in 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 is that, subject to this procedure, which has been followed here, the constituent power cannot be questioned because it is a sovereign power . The log 523. I think that the possibly theoretical question indicated above, whatever may be the object of raising it, does deserve to be seriously considered and answered by us because it discloses a basic misconception. Therefore, I propose to consider it at a length which seems to me to be justified by our need to clarify our thinking 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 openmindness which is needed by lawyers no less than by any other class today so that we may, contrary to our reputation, be responsive to the inevitable challenges of change. Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by the decision of the American Supreme Court in Dred Scott v. Standford 179. 525. I must preface my observation here about the concept of sovereignty and exercise of sovereign power , between which I 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 every social, political, economic, or legal concept or doctrine must answer the needs of the people of a country at a particular time. I see the development of concepts, doctrines, and institutions as responses to the changing needs of society in every country. They have a function to fulfill in relation to national needs. The second type of explanation may be called historical or meant merely to indicate and illustrate notions or concepts put forward by thinkers at various times in various countries so as to appropriately 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 rele 526. I certainly do not think that Judges of this Court have or should think that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave theoretically absolute powers of life and death over the slave, just like the powers of a pater-familia over his children, was contrary to just natural 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 mode 529. 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 Prudentium; Principum Placita. The last mentioned consisted of orders of Roman Emperors which were of various kinds, some of general application to cases of particular kinds and others for particular individual cases : Edicta, Decreta, Mandata, Rescripta. They had the force of law or Lex which could be roughly equated with our statutory law. Decreta were issued as decisions on individual disputes, in exercise of the Emperor's power under the authority of Lex de Imperio , although in the classical period i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the saying : Render unto Caesar the things that are Caesar's and to God things that are God's . According to the theory embodied in this saying, spiritual and temporal powers and authorities had to operate in different orbits of power altogether. Another theory, however, was than the messenger of God had given the sovereign will of God Almighty which governed all matters and this could not be departed from by any human authority or ruler. In the practical administration of justice, we are informed, Muslim caliphs acknowledge and upheld the jurisdiction of their Kazis to give judgment against them personally. There is an account of how the 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 533. Theory, therefore, that there should be a separation of functions between the making of laws, the execution of laws, and the application of laws, after ascertaining facts satisfactorily, is not new. It is embedded in our own best traditions. It is dictated, if by nothing else, by common sense and the principle of division of labour, without an application of which eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient exercise, has had to be generally lodged in one or few especially in times of crisis, but not in all those who represent the people even under democratic forms of Government. Direct democracy, except in small city States such as those or ancient Greece, is not practically feasible. 537. Theories of popular sovereignty put forward by Locke and Rousseau came to the forefront in the 17th and 18th centuries - an era of revolutionary changes and upheavals. The theory of certain immutable individual natural rights, as the basis of a set of positive legal rights, essential and necessary to the fulfillment of the needs of human beings as individuals, was advanced by Locke. He visualised a social contract as a means of achieving the welfare of individuals composing 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. Montesque elaborated this theory. The ideas of Rousseau were amongst those which contributed to produce that great conflagration, the French Revolution, which was described by Carlyle as the bonfire of feudalism : Government, according to Rousseau, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay 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 processes and such safeguards against their misuse as separation of 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 liked to look at everything turned upside down in attempts to understand them, that Democracy, with all its expensive and time-consuming accompaniments, is, even in the most advanced coteries, only a method of deluding the mass of the people into believing that they are the rulers whilst the real poser is always enjoyed by the few who 541. 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 function, from the bench, as zealous reformers propagating particular causes. Nevertheless, they cannot be expected to have not notions whatsoever of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt with the utmost propriety, for the law was clear; Lord Ellenborough points this out in the most forcible manner, in 14 East 109. Yet for this righte 543. In Stockdale v. Hansard (supra) the action of the House of commons, on Fay v. Topham (supra), was practically declared to be illegal or unconstitutional for arbitrariness. The sovereign British Parliament, however, did not alter but has acquiesced in the law as stated by Lord Denman who pointed out, by references to a number of precedents, 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. 544. Let me go back a little further to the time when another English Chief Justice, Sir Edward Coke, who on being summoned, with his brother Judges, by King James I, to answer why the King could not himself decide cases which had to go before his own courts of justice, asserte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst statutory law exception so far as certain rules of natural justice and reason could impliedly be read into Acts of Parliament due to absence of statutory prohibition and the need to observe them having regard to the 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 Parliament 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 coming into conflict with each other. One wonders whether this coul 548. Willis, dealing with 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 law (See : Willis on Constitutional Law, 1936 Edn. p. 76) : This dictum of Coke, announced in Dr. Bohman's case was soon repudiated in En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the territory of India . Article 143 of the Constitution of India also shown that whenever questions of facet of law have either arisen 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 made 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 directions or orders or writs , which is larger than that of the British courts issuing prerogative writs, although it is confined to the enforcement of the rights conferred by Part III dealings with fundamental rights. The power of the High Courts of the various States under Article 226 of the Cons 552. The claim therefore, that an amalgam or some undifferentiated residue of inherent power, incapable of precise definition and including judicial power, vests in Parliament in its role as a constituent authority, cannot be substantiated by a reference to any article of the Constitution whatsoever, whether substantive or procedural. Attempts are made to infer such a power from mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l power. The legal effect of the terms of the instrument is another matter. 555. It has been pointed out, in the Kesavananda Bharati's case (supra), that the preamble of our Constitution did not like that of the American Constitution, 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 recording an Act of entrustment and conveyance by the people of India, the political sovereign, of legal authority to act on its behalf to a Sovereign Democratic Republic . This Constitution has a basic structure comprising the tree 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 Constitutio 556. In Kesavananda Bharti's case (supra), I had approvingly quoted the view of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereignty, dominated too long by legalistic Austinian views, needs to be discarded. His conclusion is that the State, with which doctrine of sovereignty has been bound up, At any moment the State is more the official guardian than the maker of the law. Its chief task is to uphold the rule of law, and this implies that it is itself also the subject of law, that it is bound in the system of legal values which it maintains. (See : R. M. McIver : The Modern State p. 478) Laski, while mainly accepting this rather negative approach, reminiscent of 19th century liberalism, would accord the State a much more positive role in the interests not only of social order but also of socio-economic engineering and progress. 559. Marxist, who saw in the State and its laws and all institutions supporting an existing social order, the means of oppression and exploitation of the mass of the people, dreamt of the withering away of the State with its claims to sovereignty . But, the Russian Revolution was followed by the vastly increased powers of the State run for the benefit of the proletariat. Nevertheless, the Constitution of the U. S. S. R. guarantees to citizens not merely fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate 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 constitutionalism shows how a doctrine derived from the principle of popular sovereignty could produce almost the same results as the other (and apparently opposite) system of thought which started from the principle of the sovereignty of the ruler. In the one case, just as in the other, the inviolability of sovereignty, and the unity of the personality of the State, are sacrificed, in order to attain the possibility of a constitutional law which is binding even on the Sovereign. 562. A theory of a Legal Sovereignty must necessarily democrate 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 in Kesavananda's case (supra), seemed to me to satisfy this requirement. After pointing out that sovereignty, by which I understand one recognised by law, is limited both by its own nature as well as its mode of action , it concludes : (at pp. 867-868) : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in accordance with the Constitution. This concept of a nation organised in Government appears to me to clearly introduce the idea of a Constitution which lays down what the organisation is and how it must operate. Although Prof. Willis rejects the view that the Constitution is sovereign , because it can be altered by the people, he is obliged to accept something resembling it because he sees that the people , thought of as a mere aggregation or an amorphous mass, is too nebulous. Any satisfactory theory of sov 564. 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 to destroy it. He says (See : Willoughby on Fundamental Concepts of Public Law - Tagore Law Lectures, 1924, at p. 77) : There would seem to be no more value in attaching legal rights and duties to the sovereign State than there is in predicating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussion 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 body itself may be altered through the amending process, and limitations on the future amending capacity may be imposed. The amending body is an artificial sovereign deriving its being from a law in the form of Article Five. The amending groups hold office for but a short time, and may be supplanted by others in the elections in which an increasingly larger electorate participates. The theory of sovereignty, moreover, presupposes the continued orderly existence of the government. In case of a revolution the commands of the sovereign would be disregarded, and authority could no longer be ascribed to the amending body either in fact or in law. The moral, religious, physical, and other factual limitations on the supposed sovereign are so important that it may perhaps be correct to say that they are also legal limitations, as there comes a time when law and facts shade into one another. Finally, when it is rememberedHe rejects the concept of sovereignty of the people as too vague and meaningless. And, for the reasons given above, he rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purpose of obtaining an ideal sociThe effects of the moral standards of our people are already manifest. As a result of our political and economic theories, there has developed a concentration of wealth unparalleled in human history. While on the whole the economic 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 than $ 500 and two-thirds of the families in the United States incomes of less than $ 1, 000, while 2 per cent of our population owned 65 per cent of the wealth. There were four men any one of whom had an income as large as five million of the poorest people in the United States. This concentration of wealth was probably one of the primary causes of the depression, and the depression has threatened our capitalistic system. This only shows the danger inherent in our political organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be a part of the basic structure of the Constitution. 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 attempting to change what may be the basic structure of Constitution itself, appropriate amendments, judicial power could be exercised by Parliament under Article 368 on the assumption that it was already there. 572. M. C. Setalvad, a distinguished jurist of India, said (See : The Common Law of India Hamlyn Lectures, 12th series, 1960) (at pp. 174-175) : The Constitution divides the functions of the Union into the three categories of executive, legislative and judicial 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 doctrine of separation of powers as in the United States yet there is a broad division of functions between the appropriate authorities so that, for example, the Legislature will not be entitled to arrogate to itself the judicial function of adjudication.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judges, who are vested with the authority and charged with the duty to uphold the Constitution, do so as the mouth- pieces 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 underlying 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 basic or not, in the Constitution. Indeed, in Kesavananda Bharati's case (supra), I indicated that I thought that the most proper and appropriate function of the amending power in Constitution, which is also a part of the Constitution, and, indeed, its most potent part - was that of making ba 575. It has not been argued before us that the introduction by the Twenty- fourth Amendment of the new clause (1) in Article 368, containing constituent power , itself amplifies or increases the contents or changes the character of the power in Article 368 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect bearing on the 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 Constitution. 578. There are scattered dicta in the judgments of this Court speaking of the sovereignty of the people which, in my opinion, can only be related to the political sovereignty of the people recognised by the preamble to our Constitution where the people are described as the Constitution-makers who gave the Constitution unto themselves. This, however, does not, in my opinion, mean that the people retained unto themselves any residue of legal sovereignty. They did not prescribe, apart from dividing the exercise of sovereign power roughly between the three organs of the Republic, each with its own modus operandi, any other or direct method, such as Initiative or Referendum, for exercising their politically sovereign power. The view I have tried to put forward in the foregoing pages is that the people entrusted to the three organs of the Sovereign Democratic Republic they constituted the exercise of three aspects of sovereign power on behalf of the people. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isa Begum v. Mahboob Begum and Director of Endowments, Government of Hyderabad v. Akram Ali. 581. It is evident, from the quotation, relied upon by the Solicitor- General, that this Court was not deciding whether the firman was even a law in the sense of a general norm which had to be applied to the decision of cases. It was held that whatever be its 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 Constitution of Udaipur. The doctrine of separation of powers, in such a context, was really irrelevant. Article 368 of our Constitution, however, is not a power acquired by our Republic by State succession from he power of Indian ruling princes. The legislative history behind it is entire different. 582. As a matter of legislative history, we will find the source of the Constituent power in Section 6 8 of the Indian Independence Act passed by the British Parliament. Section 6 of that Act constituted a Legislature for each of two dominions set up with plenary powers of legislation. The legislative powers of the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time 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 commencement of this Constitution. 585. 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 Article 368. It is sought to be derived from Article 105. This reasoning would, obviously, conflict with the provisions of Article 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. Article 329(b) says : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This article runs as follows : Article 47. Unit 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 a disputed election to either House, shall be determined by the House in which the question arises. 589. What is separately, expressly, and especially provided for by Article 329 (b) must necessarily fall outside the purview of Article 105(3) on the principle stated above. Moreover, Article 105(3) contained a temporary provision until other provision was made by Parliament in that behalf. Appropriate provision were enacted by the Act of 1951 in compliance with Article 329(b) because that was the proper article for it. It would be idle to contend that these provisions suddenly lapsed or ceased to exist as soon as Parliament took up consideration of the issues and the grounds of the decision on them by the High Court to which reference is made in Article 329A(4), could only be a law-making power and not any other power which could conceivably fall under Article 105, Sub-Article (3). Nevertheless, it was suggested, by co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss directness and certainty, and perhaps with less open scandal, to nominate their own members, as they had done before the Grenville Act. And for half a century, this system with slight variations of procedure was suffered to prevail. In 1939, however, the ballot was at length superseded by Sir Robert Pel's Act, committees were reduced to six members, and nominated by an impartial body..... the General Committee of Elections. The same principle of selection was adhered to in later Acts, with additional securities for impartiality, and the committee was finally reduced to five members. The evil was thus greatly diminished, but still the sinister influence of party was not wholly overcome. In the nomination of election committees, one party or the other necessarily had a majority of one, and though these tribunals undoudtedly became far more able and judicial, their constitution and proceedings often exposed them to imputation of political bias. At length by the statute 31 32 Vict. c. 125, the trial of election petitions was transferred to certain of the puisne judges at Westminster, who selected annually to form a rota for this specific purpose, and who inquire upon the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament and its power which were becoming antiquated in the time of Coke, continued to be repeated far into the eighteenth century, although after 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 the phrase 'privilege of Parliament'. This only means a body of rights common to both houses, but it suggests joint action (or enforcement) by both Houses, as in legislation, whereas from Ferrers case in Henry VIII's reign, in 1543 each House enforced its own privileges separately.These 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 or privilege. 2. That the lex et consuetudo Parliamenti is a separate law, and therefore unknown to the courts. 3. That a resolution of either House declaratory of privilege is a judicial precedent binding on the courts. 593. The confusions mentioned above misled some people in this country, due to the provisions of Article 194(3) of our Constitution, on the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the election-petitioner, however, 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 ordinary legislation which takes place under the provisions of Articles 245 to 255 of the Constitution. The argument seemed to be, that, if ordinary law- making and Constitution-making took place in different orbits or on different planes of law-making power what could be done by one method was necessarily prohibited by the other. Learned Counsel relied upon a number of passages from the judgment in Kesavananda Bharati's case (supra), and, in particular, on what Ray, J. (as he then was) said (at p. 386) : (SCC p. The constituent power is sui generis. The majority view in Golak Nath Case that Article 13(2) prevails over 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 Article 245 which in its turn attracted the provisions of Article 13(2). Parliament took notice of the two conflicting views which had been taken of the unamended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt the judicial organ has to decide the question of the limits of a sovereign authority as well as that of other authorities in cases of dispute. But, when these authorities act within these limits, it cannot interfere. In other words, I look upon a sovereign power itself, under the Constitution, as limited by the supremacy of the Constitution. 599. If the constitutional provisions compel us to hold, as think they do, that no form of judicial or quasi-judicial power is included in the constituent power contained in Article 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 making of the declaration found at 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. The Act of 1951, enacted under the provisions of Article 329(b) of the constitution provided a procedure which could not be circumvented. This procedure was certainly applicable until August 10, 1975 when the Thirty-ninth Amendment received Presidential assent, rights of appeal under Section 116-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following statements to show us why 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 Vice-President shall be decided by the Supreme Court. The same article provides that matters relating to their election shall be regulated 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 Representation of the People Act, 1951. Under this Act the High Court has jurisdiction to try an election petition presented against either of them. 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. A fortiori matters relating to his election should not be brought before a court of law but should be entrusted to a forum other than a court. The same reasoning applies equally to the incumbents of the office of Vice- President, Prime Minister and Speaker. It is accordingly proposed to provide that disputes relating to the election of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding, either in the original courts or in courts of appeal, so as to render proceedings infructuous, and still others curing legally defective appointments or elections. It is not necessary to discuss these cases separately and individually as the principles laid down there are well recognised. I will be content with mentioning the cases cited. They were : M. P. V. Sundararamier Co. v. State of A. P. Vinod Kumar v. State of H. P.; Fadab Singh v. H. P. Administration; Udai Ram Sharma v. Union of India; Rustom Cavasjee Cooper v. Union of India; Fagannath v. Authorised Officer, Land Reforms; Khyerbari Tea Co. Ltd. v. State of Assam; M/s. Tirath Ram Rajindra Nath v. State of U. P.; Krishna Chandra Gangopadhya v. Union of In 606. 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; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality; Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a scrutiny of the law made by the Legislature, decla 610. In Udai Ram Sharma's case (supra), the following passage from Willoughby's Constitution of the United States, Second Edition, Vol. 3, was also cited : If the Legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts which leaves the law unchanged, but seeks to compel the courts to construe and apply it not according to the judicial, but according to the legislative judgment.... If the Legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. 611. Willoughby's statement of law in the United States of America showing that retroactive legislation which does not impair vested or substantial rights or constitutional prohibitions, is permissible and his conclusion, relying on C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and were are unable to imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place any implied restriction. We notice that the British Parliament in one case validated election : Erskine May's Treatise on the Law, Privileges, Proceeding Usage of Parliament - Seventeenth Edition, (1964).'After the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springbourn Division of Glasgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of attendance at a Tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn Elections (Validation) Bill was introduced to validate the irregular el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with this Part of this Act. (2) a petition complaining of no return shall be deemed to be a parliamentary election petition and the High Court may make such order thereon as they think expedient for compelling a return to be made or may allow the petition to be heard by an election court as provided with respect to ordinary election petitions. 616. He also submitted that, in none of the cases of validation, was any election dispute shown to be pending. No judgment was actually set aside in contravention of the binding constitutionally prescribed procedure to decide such disputes. He submitted that, in the case of an election to a parliamentary seat in this country this could be done by Parliament itself only after first repealing the application of the 1951 Act and amending Article 329(b) in such a way as to vest the power in itself to decide the dispute. 617. Learned Counsel for the election-petitioner relied upon the following statement in the American Jurisprudence, 2nd Edn. Vol. 46, at page 318 : The general rule is that the Legislature may not destroy, annul, set aside, vacate, reserve, modify, or impair the final judgment of a court of competent jurisdiction, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of the Criminal Law Special amendment Act of 1962, passed by the Parliament of Ceylon, which had purported to legalise ex-post facto the detention of persons for having committed offenses against the State, by widening the class of offenses for which trial, without jury, by nominated judges could be ordered. The scope of the offence of waging war against the Queen was widened and new powers to deal with offenders were given and additional penalties were prescribed. It was held that, although, no fundamental principles of justice could be said to have been violated by the Act, yet, the Act of 1962 and an amending Act of 1965, were invalid on the ground summarized in the headnotes as follows (at p. 260) : That the Acts, directed as they were to the trial of particular prisoners charged with particular offenses on a particular occasion, involved a usurpation and infringement by the Legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the Judiciary, manifested an intention to secure in the Judiciary a freedom from political, legislative and executive control, land, in effect, left untouche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is to virtually act as the judge in an election dispute between itself and minority parties whose cause, according to the learned Counsel, the election-petitioner represents, it would be a plain denial of political justice. I do not know why this question should be termed as one of political justice and not of plain and simple elementary justice except that the contending parties represent political causes which are, for purposes of plain and simple justice with which we are really concerned, irrelevant. We are not asked to judge a political issue directly as to who should be the Prime Minister of this country. We are only asked to hold that even a constitutional amendment, when made by members of a majority party to enforce their own views of what is p 624. What was sought to be done by the constitutional amendment may be politically very justifiable. The question before us, however, is whether it is also legally justifiable. Here, wears back again in the realm of basic principles of justice. We are not to decide a political question here at all. But, we have to decide legal questions even if they have, as many legal issues have, political consequences and repercussions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question which arises now is : Was clause (4) of Article 329A, read with clauses (5) and (6), really meant to bar our jurisdiction to consider the grievances of the petitioner and to decide them, or, can they be so interpreted as to preserve this Court's jurisdiction? 627. Broadly speaking, the election-petitioner has two heads of grievance : firstly, that the election of the original respondent is vitiated by corrupt practices which, as I have indicated, after considering the case set up by him and the evidence tendered and the law applicable, could not possibly succeed even under the law as it stood before the amendment; and, secondly, that our very jurisdiction to go into these grievances is sought to be debarred by clauses (4), (5) and (6) of Article 329A with the political object of stifling opposition, and, therefore, according to the election-petitioner, we must declare clause (4) and the connected clauses (5) and (6) of Article 329A to be invalid. Although, the first set of complaints is based upon the provisions of the Act of 1951, the second set arises because of impugned clauses of the Thirty-ninth Amendment. For the second set of grievances, the action complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. 630. Learned Counsel for the election-petitioner also relied upon H. H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, where this Court said : (at p. 75) : (SCC p. 147, para 98). The functions of the State are classified as legislative, judicial and executive : the executive function is the residue which does not fall within the other two functions. Constitutional mechanism in a democratic policy does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts Rai Sahib Ram Jawaya Kapur v. State of Punjab, Jayantilal Amritlal Shodhan v. F. N. Rana, and Halsbury's Laws of England, 3rd Edn., Vol. 7, Article 409, at p. 192. 631. Learned Solicitor General also contended that we were passing through critical times when a state of Emergency had been declared. He submitted that the decision of the constituent authorities, in excluding a particular case from the jurisdiction of this Court, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason and objects it seems possible to contend that it was not intended at all to out the jurisdiction of the Court. Hence, Article 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 provision of clause (4). 635. In the circumstances of this case, it would seem that conformity with the declaration embodied in Article 329A, clause (4) is possible, if we confine 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 our jurisdiction which determines legal effects of what is sought to be done. Of course, 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 us. But, if it is not possible to decide those appeals without giving a different meaning to the deeming provision, on which the final declaration in clause (4) rests, and clause (5) leaves us free to decide how we could conform w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, she obtained the assistance of the gazetted officers of the Government of Uttar Pradesh for furthering her election prospects; and secondly, she obtained the assistance of Shri Yashpal Kapoor, a gazetted officer in the Government of India holding the post of Officer on Special Duty in the Prime Minister's Secretariat, for furthering the same purpose. Acting under Section 8-A of the Act the learned Judge declared that the successful candidate would stand disqualified for a period of six years from June 12, 1975 being the date of the judgment. Aggrieved by this part of the judgment, Smt. Indira Gandhi has filed Appeal No. 887 of 1975. 641. The other five grounds of challenge were : (1) The successful candidate procured the assistance of the armed forces for arranging her flights by Air Force aeroplanes and helicopters; (2) Her election agent, Shri Yashpal Kapoor, and others distributed clothes and liquor to induce the voters to vote for her; (3) She and her election agent made appeals to the religious symbol of cow and calf; (4) Her election agent and others procured vehicles for the free conveyance of voters to the polling stations; and (5) She and her election agent incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and the Act of 1974. In view of his finding that the total amount of expenditure incurred or authorized by the successful candidate or her election agent, together with the amount proved to have been incurred by the political party or the State Government in concussion with her election did not exceed the prescribed limit, the learned Judge thought it unnecessary to inquire into the constitutionality of the ordinance and the Act of 1974. He, therefore, dismissed the writ petition. An appeal was filed to a Division Bench of the High Court from the aforesaid order but, by consent of parties, this Court decided to hear the points involved in the writ petition and in the appeal therefrom. 645. During the pendency of these cross-appeals, the Parliament passed the Election Laws (Amendments) Act, 1975, 40 of 1975, which came into force on August 6, 1975. This Act, if valid, virtually seals the controversy into he appeal filed in this Court by the successful candidate from the decision of the Allahabad High Court. It also takes care of a considerable gamut of the appeal filed in this Court by the defeated candidate. It substitutes a new Section 8-A in the Representation of the People ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding power. The Seventeenth Constitutional amendment passed in June 1964 was similarly upheld by a majority decision of this Court in Sajjan Singh v. State of Rajasthan, which took the view that the fundamental rights were not intended by the farmers of the Constitution to be finally and immutably settled when the Constitution was passed. But the Seventeenth Amendment came to be challenged once again in I. C. Golak Nath v. State of Punjab. By a majority of 6 : 5, this Court held that the Seventeenth Amendment was ultra vires the Parliament's power to amend the Constitution. Five out of the six learned Judges held that Article 368 did not confer any power 649. The decision in Golak Nath's case (supra) raised a debate of national dimensions as the Parliament's power to amend the Constitution so as to abridge or take away the fundamental rights virtually became a dead letter. Under the majority judgment, the Constituent Assembly alone, called by virtue of a law to be passed under entry 97 of List I, could abridge or take away the fundamental rights. The Parliament, in a resolve to re-affirm its powers, passed the Constitution (Twenty-fourth Amendment) Act on November 5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution and therefore every dispute involving the adjudication of legal rights must be left to the decision of the Judiciary. Clause (4) of Article 329A introduced by the Thirty-ninth Amendment takes away that jurisdiction and is therefore void. (iii) The function of the legislature is to legislate and not decide private disputes. In the instant case the Constituent Assembly has transgressed its constituent function by adjudicating upon a private dispute. (iv) Democracy is an essential feature of the Constitu by revolutionary methods. The question is whether it is permissible to the Parliament to use the legitimacy of constitutional provisions for effecting revolutionary changes. (viii) The constituent power partakes of legislative power land can only be exercised within the highest ambit of the latter power. Therefore, even with a two-third majority, 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, in the guise of amending the Constitution, provide that an accused arraigned be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew is at least permissible in those fields where originally the Constitution did not provide for or contemplate judicial review. (iv) If the election law does not apply, as it ceases to apply by virtue of Article 329A (4), it is the fun 656. Shri A. K. Sen who appears for Smt. Indira Gandhi defended the Thirty- ninth Amendment by contending that : (i) The amendment follows the well- known pattern of all validation Acts by which the basis of judgments or orders of competent courts and tribunals is changed and the judgments and orders are made ineffective. (ii) The effect of validation is to change the law so as to alter the basis of any judgment, which might have been given on the basis of old law and thus to make the judgment in-effective. (iii) A formal 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. (iv) The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The laws made by Parliament prior to August 10, 1975 in so far as they relate to election petitions and matters connected therewith cease to apply to the parliamentary election of Smt. Indira Gandhi which took place in 1971. (ii) Such laws are repealed retrospectively in so far as they governed the aforesaid election, with the result that they must never be deemed to have applied to that election. (iii) Such an election cannot be declared to be void on any of the grounds on which it could have been declared to be void under the laws which were in force prior to August 10, 1975. (iv) The election shall not be deemed ever to have become void on any ground on which, prior to August 10, 1975, it was declared to be void. (v) The election shall continue to be valid in all respects notwithstanding the judgment of any court, which includes the judgment da 661. Shri Shanti Bhushan has, as it were, a preliminary objection to the Thirty-ninth Amendment that the election of a private individual and the dispute concerning it cannot ever be a matter of constitutional amendment. Whether this contention is sound is another matter but I do not see the force of the argument of the Attorney-G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people, acting through the machinery p 663. There was some discussion at the Bar as to which features of the Constitution form the basic structure of the Constitution according to the majority decision in the Fundamental Rights case. That, to me, is an inquiry both fruitless and irrelevant. The ratio of the majority decision 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 elements or the basic structure of the Constitution, whatever these expressions may comprehend. Sikri, C.J. mentions supremacy of the Constitution, republican and democratic form of the Government, secular character of the Constitution, separation of powers, federalism and dignity and freedom of the individual as essential features of the Constitution. Shelat and Grover, JJ. have added to the list two other features : the mandate to build a welfare State and unity and integrity of the nation. Hegde and Mukherjea, JJ. added sovereignty of India as a f 664. I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal constituted by a law relating to the armed forces. Article 262( 667. The provision contained in Article 329(b) is decisive on the question under consideration. That article provides that no election to the Parliament or the State Legislature 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 any law made by the appropriate Legislature. It was therefore open to the Legislature to leave the adjudication of election disputes to authorities other than those in the hierarchy of our judicial system. In fact, until the passing of the Representation of the People (Amendment) Act, 47 of 1966, by which High Courts were given jurisdiction to try election petitions, that jurisdiction was vested first in a tribunal consisting of three members and later in a tribunal consisting of a single member who was to be a sitting District Judge. The decisions of those tribunals could eventually be brought before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table impediment in the existence of various forms of democracies all over the world and he asked : What kind and form of democracy constitutes a part of our basic structure? The cabinet system, the Presidential system, the French, the Russian or any other? This approach seeks to make the issue unrealistically complex. If the democratic form of government is the cornerstone 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 exigencies 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 safeguar 673. The question for consideration is whether the provision contained in Article 329A (4) and (5) are destructive of the democratic form of government. The answer does not lie in comparisons with what is happening in other parts of the world, those that stake their claim to 'democracy' because we are not concerned to find whether despite the Thirty-ninth Amendment we are still not better off, democratically, than many others. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such an isolated act of immunity has destroyed or threatens to destroy the democratic framework of our government. One swallow does not make a summer. The swallow with its pointed wings, forked tail, a curving flight and twittering cry is undoubtedly a harbinger of summer but to see all these in the Thirty-ninth Amendment and to argue that the summer of a totalitarian rule is knocking at the threshold is to take an unduly alarmist view of the political scene as painted by the amendment. Very often, as said by Sir Frederick Pollock, If there is any real danger it is of the alarmist's own making . 677. The Thirty-ninth Amendment is, however, open to grave objection on other grounds, in so far as clauses (4) and (5) of Article 329A are concerned. Generality and equality are two indelible characteristics of justice administrated according to law. The preamble to our Constitution by which the people of Indira 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. Equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days of Anwar Ali Sarkar's case, has consistently taken the view that the classification must be founded on an intelligible differential which distinguishes those who are grouped together from those who are left out and that the differential must have a rational relation to the object sought to be achieved by the particular. The first test may be assumed to be satisfied since there is no gainsaying that in our system of government, the Prime Minister occupies a unique position. But what is the nexus of that uniqueness with the law 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 that election and that an election declared to be void by a High Court judgment shall be deemed to be valid, the judgment and its findings being themselves required to be deemed to be void? Such is not the doctrine of classification and no 681. It follows that clauses (4) and (5) of Article 329A are arbitrary and are calculated to damage or destroy the rule of law. Imperfection of language hinder a precise definition of the rule of law as of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld of federalism in which American Constitution was caught and could be both unitary as well as federal according to the requirements of time and circumstances . We have what may perhaps be described by the phrase, 'cooperative federalism' a concept different from the one in vogue when the federations of United States or of Australia were set up. 684. The American Constitution provides for a rigid separation of governmental powers into three basic divisions, the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian constitution follows the same pattern of distribution of powers. Unlike these Constitution, the Indian Constitution does not expressly vest the three kinds of power in three different 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. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v. Ryan, the principle of separation of powers is not a doctrinaire concept to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as checks and balances (p. 10). The three organs must act in concert, not that their respective functions should not ever touch one another. If this limitation is respected and preserved, it is impossible for that situation to arise which Locke and Montesque regarded as the eclips 688. I do not suggest that such an encroaching power will be pursued relentlessly or ruthlessly by our Parliament. But no Constitution can survive without a conscious adherence to its fine checks and balances. Just as Courts ought not to enter into problems entwined in the political thicket , Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which has in it the precept, inmate in the prudence of self-preservation (even if history has not repeatedly brought it home), that discretion is the better part of valour . Courts have, by and large, come to check their valorous propensities. In the name of the Constitution, the Parliament may not also turn its attention from the important task of legislation to deciding court ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for their validity : (1) The law must be within the legislative competence of the Legislature as defined and specified in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of Article 13(1) and (2) of the constitution.'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitu 692. Shri Shanti Bhushan thought it paradoxical that the higher power should be subject to a limitation which will not operate upon a lower power. There is no paradox, because certain limitations operate upon higher power for the reason that it is higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the Legislatures of not less than one-half of the States as provided by Article 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. 693. No objection can accordingly be taken to the constitutional validity of the two impugned Acts on the ground that they damage or destroy the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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