347. I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharati's case because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do not find any such inhibition so far as the power of parliament or state legislatures to pass laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which could operate as limitation upon that power. The preamble, though a part of the Constitution, is neither a source of power nor a limitation upon that power. 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 Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established, the quality and nature of justice, political, social and economic which was their desideratum, the content of liberty of thought and expression which they entrenched in that document, the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution as established. These specific provisions, either separately or in combination determine the content of the great concepts set out in the preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven. The argument of counsel for the respondent proceeded on the assumption that there are certain norms for free and fair election in an ideal democracy and the law laid down by parliament or state legislatures must be tested on those norms and, if found wanting, must be struck down. The norms of election set out by parliament or state legislatures tested in the light of the provisions of the Constitution or necessary implications therefrom constitute the law of the land. That law cannot be sub ject to any other test, like the test of free and fair election in an ideal democracy.
348. I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy; justice, political, economic and social; liberty of thought, belief and 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. see Finer : Comparative Government (1970) pp. 62-63.
Definitions are important, for, they are responsible in the last analysis for our image of democracy. The question is not only what does the word 'democracy' mean but also what is the thing. And, when we try to answer this latter query, we discover that the thing does not correspond to the word. So, although 'democracy' has a precise literal meaning, that does not really help us to understand what an actual democracy is. In the real world, R. A. Dahl has pointed out that, democracies are 'polyarchies'. The term democracy has not only a descriptive or denotative function but also a normative and persuasive function. Therefore, the problem of defining democracy is two-fold, requiring both a descriptive and prescriptive function. To avoid pitfalls, it is necessary to keep in mind two things-first, that a firm distinction should be made between the js and the ought of democracy, and, second, that the prescriptive and the descriptive definitions of democracy must not be confused, because the democratic ideal does not define the democratic reality and vice versa; the real democracy is not and cannot be the same as the ideal one. See "Democratic Theory" by Giovanni Sartori, Chapter I. One cannot test the validity of an ordinary law with reference to the essential elements of an ideal democracy. It can be tested only with reference to the principles of democracy actually incorporated in the Constitution.
349. Nor can it be tested on the touchstone of justice. The modem Pilate asks. What is justice? and stays not for an answer. To Hans Kelsen justice is an irrational ideal, and regarded from the point of rational cognition, he thinks there are only interests and hence conflict of interests. Their solution, according to him, can be brought about by an order that satisfies one interest at the expense of the other or seeks to achieve a compromise between opposing interests. "General Theory of taw and State" 1946, p. 13. Mr. Allen has said that the concept of social justice is vague and indefinite. "Aspects of Justice" p. 31. Liberty of thought, expression, belief, faith and worship are not absolute concepts. They are emotive words. They mean different things to different, people. Equality of status and of opportunity are concepts laden with emotional overtones. In their absoluteness they are incapable of actual realisation. The enacting provisions in the body of the Constitution alone give concrete shape to these ideas and it is on the basis of these provisions that the validity of ordinary law should be tested.
350. The democracy which our Constitution-makers established is based on the representation of the people in the law-making organs. The method by which this representation has to be effectuated has been provided in the Constitution. Part XV of the Constitution deals with the topic of elections. Article 326 provides that elections to the House of the people and to the legislative assemblies of States should be on the basis of adult suffrage. Articles 327 and 328 provide for 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 be called in question in any court (see Article 329(a)).
351. 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 validity on the basis of some vague norms of free and fair election? I think not. As I said, like other laws made by parliament or state legislatures, the laws made under Articles 327 and 328 are liable to be tested by Part III of the Constitution or any other provision of the Constitution; but it is difficult to see how these laws could be , challenged on the ground that they do not conform to some ideal notions of free and fair election to be evolved by the court from out of bairy nothing.
352. The doctrine of the 'spirit' of the Constitution is a slippery slope. The courts are not at liberty to declare an act void, because, in their opinion, it is opposed to the spirit of democracy or republicanism supposed to pervade the Constitution but not expressed in words. When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered some ideal norm : of free and fair election.
353. Cooley has observed that courts ate not at liberty to declare statutes void because they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the Constitution. The principles of democratic republican government are not a set of inflexible rules : and unless they are specifically incorporated in the Constitution, no law can be declared bad merely because the Court thinks that it is opposed to some implication drawn from the concept. see Constitutional Limitations, 8th ''ed., Vol. 1.
354. Counsel for the respondent relied upon the observations of Sikri, C.J. at p. 216, Shelat and Grover JJ. at p. 292, Hegde and Mukherjea, JJ. at p. 355 and Reddy, J. at p. 556 in their judgments in Bharati's case in support of his contention that when these
Acts were put in the Ninth Schedule by the Constitutional amendment, their provisions became vulnerable to attack if they or any one of them damaged or destroyed the basic features of democracy or republicanism.
355. Sikri, C.J. has said that the Constitution 29th Amendment Act, 1971, is ineffective to protect the impugned Acts there if they abrogate or take away fundamental rights. This would not show that the learned Chief Justice countenanced any challenge to an Act on the ground that the basic structure of the Constitution has been damaged or destroyed by its provisions not constituted by the fundamental rights abrogated or taken away. In other words,1 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 be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to basic structure. But the Act cannot be attacked, if I may say so, for a collateral reason, namely, that the provisions of the Act have destroyed or damaged some other basic structure, say, for instance, democracy or separation of powers.
356. Shelat and Grover, JJ. have said in their judgment that the 29th Amendment is valid, but the question whether the Acts included in the Ninth Schedule by that Amend ment or any provision of those Acts abrogates any of the basic elements of the Constitutional structure or de nudes them of their identity will have to be examined when the validity of those Acts comes up for consideration. Similar observations have been made by Hegde and Mukherjea. JJ. and by Reddy, J. Khanna, J. only said that the 29th Amendment was valid.
357. It is rather strange that an Act which is put in the Ninth Schedule with a view to obtain immunity from attack on the ground that the provisions thereof violate the fundamental rights should suddenly become vulnerable on the score that they damage or destroy a basic structure of the Constitution resulting not from the taking away or abridgment of the fundamental rights but for some other reason.
358. There is no support from the majority in Bharati's case for the proposition advanced by counsel that an
ordinary law, if it damages or destroys basic structure should be held bad or for the proposition, that a Constitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see no reason for accepting the correctness of the proposition.
359. The Constitution-makers eschewed to incorporate the 'due process' clause in that instrument apprehending that the vague contours of that concept will make the court a third chamber. The concept of a basic structure as brooding omnipresence in the sky apart from the specific provisions of the Constitution constituting it is too vague and indefinite to provide a yardstick to determine the validity of an ordinary law.
360. So if it be assumed that these election laws amendment Acts, even after they were put in the Ninth Schedule by Constitutional amendment remained open to attack for contravention, if any, of the fundamental rights, these Acts would not be open to attack on the ground that their provisions destroyed or damaged an essential feature of democracy, namely, free and fair election. The Acts remain part of the ordinary law of the land. They did not attain the status of Constitutional law merely because they were put in the Ninth Schedule. The utmost that can be said is, as I indicated, that even after Dutting them in the Ninth Schedule, their provisions would be open to challenge on the ground that they took away or abrogated all or any of the fundamental rights and therefore damaged or destroyed ,a basic structure if the fundamental rights or right taken away or abrogated constitute or constitutes a basic, structure.
361. 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.
362. Retrospective operation of law in the field of election has been upheld by this Court (see Kanta Kathuria v. Manak Chand . 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 the ground of discrimination or unfairness merely because of their retrospective effect. In ' other words, if an Act cannot be challenged on the ground that its provisions are discriminatory or unreasonable if it is prospective in operation, those provisions cannot be attacked on these grounds merely because the provisions were given retrospective effect, unless there are special circumstances. I see no such special circumstances here.
363. I therefore hold that these Acts are not liable to be challenged on any of the grounds argued by counsel.
364. Counsel for the respondent submitted that the session of parliament in which the Election Laws Amendment Act. 1975 and the 39th Amendment to the Constitution were passed was not properly convened and therefore the amendments were invalid.
365. The argument was that a number of members of the two Houses of Parliament, were illegally detained by executive orders before the summoning of the two Houses and that was made possible by the President-the authority to summon the two Houses-making an order under Article 359 of the Constitution on 27-6-1975, which precluded these members from moving the court and obtaining release from illegal detention and attending the session. In effect, the contention of counsel was that the authority to summon parliament effectually prevented by its order made under Article 359. those members who were illegally detained from attending the session and, as the composition of the session was unConstitutional, any measure passed in the session would be bad. Reliance was placed by counsel upon the decision in A. Nambiar v. Chief Secretary in support of this
366. The question which fell for consideration in that case was whether, when a member of parliament was convicted for a criminal offence and was undergoing a sentence in pursuance thereof, he has an unconditional right to attend a session of. parliament. This Court held that he had no privilege which obliged the court to release him from custody in order to enable him to attend the session. This decision has no relevance to the point in controversy here.
367. In England, a member of parliament who is convicted of a criminal offence and is undergoing sentence in pursuance to his conviction has no right or privilege to be released from custody for attending parliament. The very same principle will apply in the case of a detention under an emergency regulation. see May's Parliamentary Practice, 18th ed., p. 103.
368. 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 (1842) 8 CI & F 710 at p. 724:
I think it right to say a word or two upon the point that has been raised with regard to an Act of Parliament being held inoperative by a court of 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 both Houses.
369. It has since been said that Parliamentary Roll is not conclusive, that when the jurisdiction of a court is invoked, it has power to determine whether everything necessary has been done for the production of a valid statute, that rule of law requires that the court should determine legal questions raised before it and if its jurisdiction is properly invoked, it has to answer the question whether the document is a statute duly enact-ed by a parliament. The view as propounded has been summarized as follows:
(1) Sovereignty is a legal concept : the rules which identify the sovereign and prescribe its composition and functions are logically prior to it.
(2) There is a distinction between rules which govern, on the one hand, (a) the composition, and (b) the procedure, and on the other hand (c) the area of power, of a sovereign legislature.
(3) The courts have jurisdiction to question the validity of an alleged Act of Parliament on grounds 2(a) and 2(b), but not on ground 2(c)." see R.F.V. Heuston : Essays in Constitutional Law, Second edition, pp. 6-7. The reasons for the view are these : When the purported sovereign is anyone but a single actual person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a condition of the validity of his legislation, are rules of law logically prior to him. See Latham : "The Law and the Commonwealth" (O. U, P. 1949) p. 523. The extraction of a precise expression of will from a multiplicity of human beings is, despite all the realists say, an artificial process and one which cannot be accomplished without arbitrary rules. It is therefore an incomplete statement to say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certain way prescribed by law. At least some rudimentary manner and form is demanded of it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible. See Latham : "What is an Act of Parliament"? 1939 Kings Counsel, p. 152.
370. Sir Frederick Pollock has said that supreme legal power is in one sense limited by the rules which prescribe how it shall be exercised. Even if no Constitutional rule places a limit or boundary to what can be done by sovereign legal authority, the organs which are to exercise it must be delimited and defined by rules. See Geoffrey Marshall : Constitutional Theory. P. 40-41.
371. So, the questions to be asked are : how is parliament composed? How does parliament express its will?
372. The rules which identify the sovereign are as important as the institution so identified. If this is so, it is open to the court to see whether a parliament has been properly summoned in 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.
373. 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 Parliament 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". Essays in Constitutional Law, p. 18 (2nd ed.).
374. 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 from the question whether the two Houses have been properly summoned and the composition of the Session was proper.
375. The Solicitor General said that if a member is excluded from participating in the proceedings of a House, that is a matter concerning the privilege of that House as the grievance is one of exclusion from the proceedings within the 'walls of the
House. And, in regard to the right to be exercised within the walls of the House, the House itself is the judge. He referred to May's Parliamentary Practice (18th ed. pp. 82-83) and also to Bradlaugh v. Gossett (1884) 12 QBD 271, 285-286 in this connection. He further said that if an outside agency illegally prevents a member from participating in the proceedings of the House, the House has power to secure his presence in the House and cited May's Parliamentary Practice (18th ed. pp. 92-95.) to support the proposition.
376. These passages throw no light on the question in issue here. Ever since the decision of Holt C.J. in Ashby v. White (1703) 14 St. T Rule 695 it has been settled that privilege is part of the common law and cannot affect rights to be exercised outside or independently of the House. Regularity of internal proceedings is one thing; the Constitutional rights of the subject are another; and it is the latter which are in issue in a case where the question is whether the document is a statute. See Heuston : Essays in Constitutional Law, 2nd ed., p.
377. Article 85(1) provides that the President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
378. The detention of these members of parliament was by statutory authorities in the purported exercise of their statutory power. It would be strange if a statutory authority, by an order which turns out to be illegal, could prevent the Houses of Parliament from meeting as enjoin ed by Article 85. If a statutory authority passes an illegal order of detention and thus prevents a member off parliament from attending the House, how can the proceedings of parliament become illegal for that reason? It is the privilege of parliament to secure the attendance of persons illegally detained. But what would hap pen if the privilege is not exercised by parliament? I do not think that the proceedings of parliament would become illegal for that reason. 379. 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 not authorized the illegal detention of any person let alone any member of parliament or unConstitutionally prevented the release from custody of any member. He has only discharged his Constitutional functions. If this be so, it is difficult to hold that the session in which the amendments were passed was illegally convened. The challenge to the validity of the amendments on this score must be overruled.
380. Counsel for the respondent submitted that it is immaterial when a candidate committed a corrupt practice-whether it was before or after he became a candidate-and that an election would be set aside even if a person committed the corrupt practice before he became a candidate. Section 79 (b) of the Representation of the People Act. 1951, denned the word 'candidate' as follows:
'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.
Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the present definition in Section 79(b) which reads:
'candidate' means a person who has been or claims to have been duly nominated as a candidate at an election.
381. In support of the proposition that an election can be set aside even if a person has committed corrupt practice of bribery before he became a candidate, counsel cited Halsbury's Laws of England, 3rd ed., Volume 14, pages 222 (para. 386) and 218 (para. 380).
382. These paragraphs state that in order to constitute the offence of bribery, it does not matter how long before an election a bribe is given, provided that the bribe is operative at the time of the election, and that, time is material only when considering the question of evidence.
383. Counsel further said that under Section 100 of the Representation of the People Act, 1951, an election is liable to be set aside if it is found under Clause (b) of Sub-section (1) of that section that a returned candidate has committed corrupt practice; that ex hypothesi, a returned candidate cannot commit a corrupt practice, and therefore, it is not the description of a person as a returned candidate that is material. He argued that if in Section 100(1)(b) the word 'returned candidate' is used not with the idea of indicating that a person should have committed corrupt practice after he became a returned candidate, there is no reason to think that the word 'candidate' in Section 123(7) has been used to show that the corrupt practice therein mentioned should have been committed after a person has become a 'candidate' in order that the election of the candidate might be set aside.
384. There can be no doubt that Section 100(1)(b), when it speaks of commission of corrupt practice by a returned candidate, it can only mean commission of corrupt practice by a candidate before he became a returned candidate. Any other reading of the 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.
385. 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. Parameswaran Match Works, Civil Appeals Nos. 262-273. 587-591 and 1351-1402 of 1971 and 1883-1921 of 1972, D/- 4-11-1974 - () this Court observed:
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. See Louisville Gas Co. v. Alabama Power Co. 240 US 30 at p. 32 per Justice Holmes.
386. The learned Chief Justice has, in his judgment, referred to the relevant English statutes and the decisions of the English Courts bearing on this point and has pointed out the difference between the English Law arid the Indian Law. I do not consider it necessary to cover the same ground. I agree with his conclusion on the ooint.
387. I would therefore hold that even if it be assumed that the finding of the High Court that the appellant obtained or procured the assistance of Shri Yashpal Kapur during the period from January 7 to 24, 1971, is correct, the appellant shall not be deemed to have committed corrupt practice under Section 123(7) of the Representation of the People Act, 1951, as she became a candidate only on February 1. 1971. The learned Chief Justice has also dealt with the contention urged by counsel for respondent that Clause 8(b) of the Election Laws Amendment Act, 1975 suffers from the vice of excessive delegation and is arbitrary. I agree with his reasoning for repelling the 6ame.
388. There can be no dispute that if the Election Laws Amendment Act, 1975, is valid, the appeal has to be allowed. I would, therefore, set aside the findings of the High Court against the appellant and allow the appeal without any order as to costs. In the cross appeal, the only question raised was about the correctness of the finding of the High Court that the appellant has not exceeded the prescribed limit of election expense. For the reasons given by Khanna, J. in his judgment, I hold that the finding of the High Court on this issue was correct. In this view, I have no occasion to reach the other questions argued. I would dismiss the cross appeal without any order as to costs.
M.H. Beg, J.
389. There are two Election Appeals Nos. 887 and 909 of 1975, before us under Section 116-A of the Representation of the People Act of 1951 (hereinafter referred to as 'the Act'). They are directed against decisions on different issues contained in the same judgment of a learned Judge of the Allahabad High Court allowing en election petition filed fey Shri Raj Narain (hereinafter referred to as the 'Election Petitioner'), a defeated candidate at the election held in February. 1971, for the membership of the Lok Sabha or the House of the People against Shrimati Indira Nehru Gandhi, the Prime Minister of India (hereinafter referred to as 'the Original 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.
390. Before the election case, instituted on 24-4-1971, could be decided by the trial Court, an explanation was added to Section 77(1) of the Act. It had 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 (Amendment) Act No. 40 of 1975, (hereinafter referred to as the 'Act of 1975'), notified on 6-8-1975, after the decision of the case by the learned Judge of the Allahabad High Court on 12-6-1975 and after the filing of the appeals before us. These amendments deal directly with several questions decided by the Allahabad High Court which were pending consideration before this Court. Finally, came the Constitution (Thirty-ninth) Amendment Act of 1975, (hereinafter referred to as the '39th Amendment'), gazetted on 10-8-1975, just before the commencement of the hearing of the appeals by this Court.
391. It was submitted by the learned Counsel for the original respondent in his opening address, that Section 4 of the 39th Amendment, adding Clause (4) to Article 329-A of the Constitution, meant' that Parliament itself, acting in its constituent capacity, had taken the case in hand and had, after applying its own standards, decided it in favour of the original respondent so that the jurisdiction of this Court to go into the merits of the case was ousted by Clause (4), read with Clauses (5) and (6). sought to be add ed to Article 329-A of the Constitution. It was submitted by him that each one of the amendments of the Act was aimed at removing genuine uncertainties or doubts about what the law was so that it may be brought into the line with what it had been previously understood to be as declared by this Court, or, in any case, with what Parliament, correctly exercising its unquestionable law making powers, thought that it should be.
392. The constantly recurring and vehemently pressed theme of the arguments of the learned Counsel for the election petitioner was that the context and the contents of the Acts of 1974 and 1975, and. after that of Section 4 of the 39th Amendment, clearly indicated that the whole object of the Acts of 1974 and 1975 and of the Constitutional amendment was an oblique one : to deprive the election petitioner of the remedies he had under the law against an election vitiated by corrupt practices, and of the benefits of a decision of the High Court in his favour by taking away its grounds and then the jurisdiction of Courts, which existed at the me of the 39th Amendment, to deal with the case so that this case may not, in any event, terminate in favour of the election petitioner. It was repeatedly suggested by the learned Counsel for the election petitioner throughout his arguments, that the law making powers had been really abused by a majority in Parliament for the purposes of serving majority party and personal ends which were Constitutionally unauthorised. It was even alleged that the President of India had also become a party to the misuse of Constitutional powers by passing an ordinance depriving Courts of jurisdiction to entertain Habeas Corpus petitions so that members of Parliament belonging to op position parties, detained under preventive detention laws, may not secure re lease and oppose proposals which became embodied in the 1975 Act and the 39th Amendment. It is when the country is faced with issues of this nature that the Constitutionally vital role of the judicature, as a co-ordinate and independent organ of a democratic system of Government, comes into prominence and has to be performed without fear or favour, affection or ill will as the custodian of con stitutionality.
393. In the circumstances indicated above, it seemed to me to be absolutely essential for us to call upon the parties defending or assailing the 39th Amendment and the Acts of 1974 and 1975, to take us, inter alia, into the merits of the cases of the two sides and the findings given by the trying Judge so as to enable us to see how far these findings were justifiable under the law as it stood even before the amendments by the Acts of 1974 and 1975, how they were affected by these amendments, and how they were related to the validity of Section 4 of the 39th Amendment. Speaking for 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 39th 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 of justice required that the party with a better case should not be deprived of an opportunity of justifying its position, on facts and law touching the merits of the case, in the highest Court of the land, particularly when the original respondent, who happens to be the Prime Minister of this country, was accused of corrupt practices to secure her election and then of abuse of Constitutional power and position to shield them. The high office of the original respondent, far from disabling this Court from investigating such allegations, ought to provide a good ground for this Court to go into the merits of the case if we are not really deprived of our jurisdiction to do that by Section 4 of the 39th Amendment. This follows from the Rule of law. as I understand it, embodied in our Constitution. National interests cannot, or, at least, should not, I believe, suffer if justice and right, as determined by the highest Court in the country, prevail.
394. 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, has to do so by applying the criteria of basic Constitutional purpose and Constitutionally prescribed procedure. The assumption underlying the theory of judicial review of all law making, including fundamental law making is that Courts, acting as interpreters of what has been described by some political (philosophers (See : Bosanquet's "Philosophical Theory of the State" Chap. V, p. 96-115) as the "Real Will" of the people, embodied in their Constitution and assumed to be more lasting and just and rational and less liable to err than their "General Will", reflected by the opinions of the majorities in Parliament and the State Legislatures for the time being, can discover for the people the not always easily perceived purposes of their Constitution. The Courts thus act as agents and mouthpieces of the "Real Will" of the people themselves. Although, Judges, in discharging their onerous Constitutional duties, cannot afford to ignore the limitations of the judicial technique and their own possibly greater liability to err than legislators could on socio-economic issues and matters of either social philosophy, or practical policy, or political opinion only. yet. they cannot, without violating their oaths of office, fail to elucidate and up hold a basic Constitutional principle or norm unless compelled by the law of the Constitution to abstain from doing so. One of these basic principles seems to me to be that, just as Courts are not Constitutionally competent to legislate under the guise of interpretation, so also neither our Parliament nor any State Legislature, in the purported exercise of any kind of lawmaking power, perform an essentially judicial function by virtually withdrawing a particular case, pending in any Court, and taking upon itself the duty to decide it by an application of law or its own standards to the facts of that case. This power must at least be first Constitutionally taken away from the Court concerned and vested in another authority before it can be lawfully exercised by that other authority. It is not a necessary or even a natural incident of a "Constituent power", As Hans Kelsen points out, in his "General Theory of Law and the State", (See : p. 143), "while creation and annulment of all general norms, whether basic or not so basic, is essentially a legislative function. their interpretation and application to findings reached, after a correct ascertainment of facts involved in an individual case, by employing the judicial technique, is really a judicial function. Neither of the three Constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own Constitutionally assigned sphere or orbit of authority into that of the other. This is the logical and natural meaning of the principle of Supremacy of the Constitution.
395. Issues raised before us relating to the validity of the 39th Amendment and the Acts of 1974 and 1975 were : What are the Constitutional purposes and ambit of the "Constituent power" found in Article 368 of our Constitution? Were they, in any way. exceeded by the constituent authorities in making the 39th Amendment in an unauthorised manner, or, for objects which, however, laudable, were outside the scope of Article 368? Was there any procedural irregularity in the composition of Parliament which could enable this Court to hold that there was a basic defect in the enactment of either the 1975 Act or of the 39th Amendment? Whether provisions of the Acts of 1974 and 1975 are immune from attack even on the ground that they resulted in a departure from the "basic structure" of our Constitution as explained by this Court in Kesavananda Bharti v. State of Kerala by
having been included in the 9th Schedule of our Constitution, which does protect them from a challenge on the ground of any contravention of Part III guaranteeing fundamental rights to citizens and other persons, or, in other words, were the limits of the basic structure only operative against Constitutional amendments or apply to ordinary statutes as well? Are any of the provisions of the Acts of 1974 and 1975 void for departures from or damage to any part of the "basic structure" of our Constitution or for any other excess or misuse of law making powers?
396. We do not, when such a case comes up before us, concern ourselves with the validity of provisions other than those which affect the case before us. Nor do we consider the objects of any provision, in vacuo, divorced from the facts of the case to be decided. Therefore, parties had to and did address us on the broad features of the findings given by the learned trial Judge and the nature of the evidence given to support them so that we may be able to decide, inter alia, whether any "validation" of the original respondent's election, which was the evident purpose of Clause (4) of Article 329-A, Sought to be added by Section 4 of the 39th Amendment, was at all necessary. If that election was not really void and had been wrongly held by the trial Court to be vitiated, it did not need to be Validated at 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 proceeded on a basically erroneous premise that the original respondent's election was invalid when the question of its validity was sub judice in this Court? How could such a premise be assumed to be correct before this Court had gone into merits and decided the appeals pending before it? Such an inquiry is not irrelevant if the very nature and purpose of the exercise of a power are put in issue by both sides.
397. 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 use the language of Section 116-A(4) (sic) (116-B(3)(?)) 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 116-A(4) (sic) (116-B(3)(?)) of the Act, it deprived the order of the High Court of any operative force whatsoever during the pendency of these appeals. There could be really no binding precedent in discretionary matters depending on the facts and circumstances of each case. The operation of the judgment of the trial Court and the consequential orders are stayed only on "sufficient cause" shown on the facts of that case. In the case before us, the sufficient cause seems to me to be apparent from a bare perusal of the judgment of the trial Court. As I have pointed out below, the judgment under appeal contains glaringly erroneous conclusions. reached by ignoring what has been repeatedly laid down in election cases by this Court, even if one were to assume, for the sake of argument, that all the findings of fact recorded by the trial Court, including some very questionable ones, on which its conclusions rest, were correct.
398. In a case where the bona fides of legislation and even of a Constitutional amendment, is questioned on the ground of a suggested frightfulness in the facts of the case which Parliament and the ratifying State Legislatures are to be supposed, if we are to accept the suggestion, to have been acting in concert to prevent this Court from examining on merits it was, I think, the duty of counsel making any such suggestion to invite our attention to any fact not fully disclosed or discussed in the judgment under appeal at least when he was asked, as I repeatedly asked him in the course of his arguments extending over a period of about fifteen days out of a total period of hearing of the case for thirty two days, how the trial Court's conclusions on the two matters, forming the subject-matter of appeal No. 887 of 1975 of the original respondent, could possibly be justified. However, I have also satisfied myself, by going through the whole evidence on record on these two matters, which I shall presently deal with, that learned Counsel for the, election petitioner could not possibly usefully add anything to the replies he actually gave on the questions put to him on these matters and to the discussion of the whole evidence on these questions by the trial Court. I have taken pains to clarify this position as the learned Counsel for the election petitioner at the end of arguments of both sides, extending over thirty two days of actual hearing, stated that he had argued on the assumption that we will be concerned only with the validity of the 39th Amendment and the validity and correct interpretation of the Acts of 1974 and 1975. I think that it was made clear to him that we will have to enter into the merits if that was necessary, as I think it is, for judging whether amendments in law were either necessary or justified. Learned Counsel for the election petitioner was not prevented from dealing with any question, whether of fact or law, which he may have wanted to raise. Learned Counsel for both sides had fully argued at least the election petitioner's appeal No. 909 of 1975 on facts and law. They had taken us sufficiently into facts and findings involved in the original respondent's appeal No. 887 of 1975 to justify our dealing with all questions necessary to decide this appeal on merits also. Indeed, it is not necessary for us to go beyond findings of fact recorded by the learned Judge, as distinct from conclusions based upon them which are questions of law, to demonstrate the very palpable errors committed by the learned Judge on the two questions which are the subject-matter of appeal No. 887 of 1975.
399. Shrimati Indira Nehru Gandhi was elected to the House of the People from the Rae Bareli constituency in Uttar Pradesh by an overwhelming majority of 1,11,800 votes against Shri Raj Narain. As is not unusual, the defeated candidate filed an election petition under the Act making all kinds of allegations, including some quite extravagant ones, which form ed the subject-matter of the first set of eleven issues framed on 19-8-1971. There after, three additional issues were framed on 27-4-1973 when the question whether an amendment of the petition, sought after the period of limitation for filing a petition to challenge the election had expired, should be permitted, had been finally decided by this Court in favour of Shri Raj Narain.
400. The issues framed give an idea of the cases set up on behalf of the two sides. They were:
1. Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in furtherance of the prospects of her election while he was still a Gazetted Officer in the service of Government of India. If so, from what date?
2. Whether at the instance of respondent No. 1 members of the Armed Forces of the Union arranged Air Force Planes and helicopters for her, flown by members of the Armed Forces, to enable her to address election meetings on 1-2-1971 and 25-2-1971, 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 1-2-1971 and 25-2-1971; 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 con sent 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 Representation of the People Act?
6. Whether by using the symbol cow and calf, which had been allotted to her party by the Election Commission in her election campaign the respondent No. 1 was guilty of making an appeal to a religious symbol and committed a 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. 1's election agent Yashpal Kapur, or other persons with his consent, as detailed in Schedule B to the petition?
8. Whether the particulars given in paragraph 12 and Schedule B of the petition are too vague and general to form a basis for allegations regarding a corrupt practice under Section 123(5) of the Representation of the People Act?
9. Whether respondent No. 1 and her election agent Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by Section 77 of the Representation of the People Act read with Rule 90 as detailed in para. 13 of the petition?
10. Whether the petitioner had made a security deposit in accordance with the rules of the High Court as required by Section 117 of the Representation of the People Act?
11. To what relief, if any, is the petitioner entitled?
1. Whether respondent No. 1, obtained and procured the assistance of Yashpal Kapur in furtherance of the prospects of her election while he was still a Gazetted Officer in the service of the Government of India. If so, from what date?
2. Whether respondent No. 1 held herself out as a candidate from any date prior to 1-2-1971 and if so, from what date?
3. Whether Yashpal Kapur continued to be in the service of Government of India from and after 14-1-1971 or till which date?
401. The High Court trying the case had. in the course of a lengthy judgment rejected the election petitioner's case on issues Nos. 2, 4, 6, 7, and 9 of the first set of issues, after minutely and meticulously scrutinizing every material allegation of the election petitioner and the evidence given in support of it on each of these issues. Out of these the election petitioner, in his cross appeal No. 909 of 1975, has questioned the findings of the High Court only on issues Nos. 2. 4, 6, 7 and 9 set out above. Issues Nos. 5 and 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.
402. The learned trial Judge had accepted the election petitioner's case on the material issues numbered 1 and 3 of the initially framed issues, and on the overlapping and subsidiary additional issues 1, 2 and 3. He was of opinion that Shri Yashpal Kapur, a Central Government servant and a Gazetted Officer of the rank of an Under-Secretary, deputed to serve in the Prime Minister's Secretariat as an Officer on Special Duty, had held his post until 25-1-1971. when his resignation, tendered on 13-1-1971, was accepted by the President of India with effect from 14-1-1971, by means of a notification published on 6-2-1971. Consequently, the learned Judge set aside the election of the original respondent after holding that she was guilty of a "corrupt practice", as defined by Section 123(7) of the Act. on each of two grounds : firstly, that she must be deemed to have obtained the help of Shri Yashpal Kapur. in the furtherance of her election, before he had ceased to be a Gazetted Officer in Government service, and after the original respondent had first held herself out, on 29-12-1970, as a candidate at the forthcoming election from the Rae Bareli constituency by answering in the negative a question put to her at & Press Conference in New Delhi inquiring whether she had decided to change her constituency from Rae Bareily in U.P. to Gurgaon in Haryana; and, secondly, that she must be deemed to have obtained the help of officials of the State of U.P. who got rostrums constructed for her election speeches and electricity provided and arrangements made for loudspeakers. The learned Judge declared her to be disqualified under Section 8-A of the Act from holding her office for a period of six years from the date of his order dated 12-6-1975. I deliberately employ the word "deemed" to describe the nature of the findings of the trial Judge on both these questions because the learned Judge had himself indicated that they were inferences based entirely on circumstantial and not on any direct evidence whatsoever of any instructions issued either by the original respondent or by her election agent during the period following 29-12-1970. Election Appeal No. 881 of 1975 was filed against decisions on these two questions and consequential orders of the learned trial Judge.
403. The law. as found in the Act of 1951 did not. unlike the English Act of 1949, make a distinction between corrupt practices and illegal practices. Section 123(7), as it has stood unamended, enume rates, as the last of the 7 classes of corrupt practice, as follows:
Section 123(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:
(a) gazetted officers;
(b) stipendiary judges and magis(c) members of the armed forces of the Union;
(d) members of the .police forces;
(e) excise officers;
(f) & (g) xx xx xx
Explanation.- (1) In this section the expression 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate.
404. It is clear that "the obtaining or procuring or abetting or attempting to obtain or procure" had to take place either by a candidate or by his agent or by somebody "with the consent of the candidate or his election agent". Until the candidate had appointed an election agent, the action of any other person could not constitute him automatically an agent so that he may by doing something voluntarily, succeed in making the candidate vicariously liable for his own actions whether he was or was not a gazetted officer at the time when he committed the act complained of. The question of obtaining assistance through "an agent" or "other person with the consent of a candidate or his election agent" could only arise where such a case of obtaining assistance indirectly through others is set up but not otherwise.
405. On issue No. 1, the case set up in paragraph 5 of the petition is:
Smt. Indira Nehru Gandhi obtained and procured the assistance of the said 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 pro cured 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 27-12-1970....
It is a case of liability resulting from an alleged "direction" given by Smt. Indira Nehru Gandhi herself to Shri Kapur. No case of 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 Govt. Officers, but no directions or orders given by anyone are mentioned there. Issue No. 1 shows that the case which was put in issue and went on trial was whether the original respondent had herself issued some direction to Shri Kapur. Issue No. 3 shows that what was in issue here was whether the Government officers mentioned there rendered the assistance indicated' there "at the instance" of the original respondent or her election agent. The discussion of evidence and findings of the learned Judge, particularly on issue No. 1, show that the learned Judge had almost made out a new case for the election petitioner and accepted it. This was, ,on issue No. 1, whether Shri Kapur had done some acts in circumstances which justify the inference that he was constituted a de facto agent of the Prime Minister even before he was appointed her election agent on 1-2-1971, and on issue No. 3, whether sending round of certain tour programmes with the approval of the Prime Minister, in the background of certain long standing instructions of the Comptroller and Auditor General, read with letters sent by the Government of India, as long ago as 12-1-1959, and 19-11-1969. amounted to "implied" directions by the Prime Minister or her election agent to the State Government to provide the facilities the Govt. officials gave. Now, whenever a case of a liability by "implication", where there is such a species of liability in law comparable to a criminal liability, is to be fastened upon an individual, the prosecutor is to be expected, as a part of an elementary duty to give fair notice and a fair opportunity to meet what the individual has really to be made liable for. either because of some act or omission of the individual concerned, or, even more so, for that of an agent or another person for which there may be some sort of vicarious liability, from facts showing consent or agency, to give full particulars of circumstances from which such implications or vicarious liabilities may arise. I do not find that this was done here.
406, The law must lay down a duty to prevent, by taking some steps which are not taken, before a person is held liable for an omission. And, there is a difference between omission to prevent the doing of something and actual consent to the doing of it. I do not find, in the petition, any case of a liability from omissions to do something set up, obviously because the law does not impose upon the candidate the duty to prevent the giving of voluntary assistance by others whether officials or not. Nor is there anywhere in the petition a case of procurement by consenting to aid obtained through others It has to be remembered that on the language of Section 123(7) a liability is not created by merely not rejecting voluntarily given aid. The candidate may not often be aware of the voluntarily given assistance so as to be able to reject it. A case of consent which can be legally set up is only one of consenting to active obtaining or procurement by an agent or by some other person who becomes, for the purpose of the specific aid given and consented to, ordinarily prior to obtaining it as good as an agent employed by the candidate.