38. The power of the legislature to validate matters which have been found by judgments or orders of competent courts and Tribunals to be invalid or illegal is a well-known pattern. The legislature validates acts and things done by which the basis of judgments or orders of competent courts and Tribunal 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, then the competent legislature has validated the tax or levy by a validation Act involving a re-enactment of the invalid law. Where the competent legislature has passed a law which is contrary to any of the Fundamental Rights in Part III of the Constitution and the law has been declared void by a competent court, the appropriate legislature has passed a retrospective law validating the actions taken under the old invalid law by curing the defects in the old law so as to make the new law consistent with Part III of the Constitution.
40. Where invalid elections declared by reason of corrupt practices have been validated by changing the definition of corrupt practices in the Representation of the People Act, 1951 retrospectively the original judgment is rendered ineffective. (See Kanta Kathuria v. Manak Chand Surana.
41. Our Federal Court in Basanta Chandra Ghose v. The King Emperor 1944 FCR 295 dealt with the validity and effect of Ordinance No. 3 of 1944. One of the objects of that Ordinance was to enact a presumption in the Ordinance itself in favour of detention orders to preclude their being questioned in courts of law and to take away or limit the power of the High Court to make orders under Section 491 of the Cri.P.C. The third object of the Ordinance was challenged on the ground that Section 10(2) of the Ordinance which provided that if at the commencement there is pending in any Court any proceeding by which the validity of an order having effect by virtue of Section 6 as if it had been made under this Ordinance is called in question, that proceeding is hereby discharged. Section 10(2) of the Ordinance was challenged on the ground that this was in abrogation of judicial power by legislative authority. It was said that the legislative authority only passed the law and the disposal of the particular case could remain the function of the court. Section 10(2) of the Ordinance was said not to leave it to the court to apply the rule of law to the decision of cases but to discharge all pending proceedings. Our Federal Court, noticed the distinction between a legislative act and the judicial act. and said "a direction such), a proceeding is discharged is clearly a indicial act and not an enactment of law". In Piare Dusadh's case (supra) the latter
Ordinance provided that the decisions of the earlier Tribunals which were negatived by a decision of the Federal Court should be treated as decisions of duly constituted Tribunals. That was held not to constitute a judicial power by the Ordinance making authority. In Basanta Chandra Ghose's case (supra) the Federal Court held Section 10(2) of the Ordinance to be a direct disposal of cases by the legislature itself. Basanta Chandra Ghose's case (supra) was decided on the ground that the section in the Ordinance discharged the proceedings. There was nothing left to the Court.
42. Counsel on behalf of the respondent contended that the constituent power could deal with amendments of the Consitution, but could not exercise constituent power in relation to validating an election.
43. Judicial Review is one of the distinctive features of the American Constitutional Law. In America equal protection of the laws is based on the concept of due process of law. These features are not in our Constitution.
44. In Bond's case (1966) 17 L Ed 2d 235 (supra) the House claimed additional power to disqualify a member on grounds other than those stated in the Constitution. It was conceded there as it will appear at page 244 of the Report that judicial review against the disqualification decreed by the House would be available if a member was excluded on racial ground or other unConstitutional grounds. The House claimed that the ground on which Bond was disqualified 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 fundamental rights of Bond. This is not an authority for the proposition that the decision of the House on an election dispute would be open to judicial review.
45. The ease of Powell v. McCormack (1969) 23 L Ed 2d 491 (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 unConstitutional. This case is an authority for the proposition that if a power is committed to a particular organ, the court cannot adjudicate upon it. Where a power is exercised by one organ, which is not committed to that particular organ of the State and such exercise of power is violative of a Constitutional provision the matter becomes cognizable by courts. The Court held that a question of unConstitutional exclusion of a member is not barred from judicial review as a political question.
46. Judicial review is not to be founded on any Article similar to the American Constitution. In the Australian Constitution also the judicial power is located in the court. The doctrine of separation of powers is carried into effect in countries like America, Australia. In our Constitution there is separation of powers in a broad sense. But the larger question is whether there is any doctrine of separation of powers when it comes to exercise of constituent power. The doctrine of separation of powers as recognised in America is not applicable to our country. (See Delhi Laws Act; Jayantilal Sodhan v. F.N. Rana ; Chandra Mohan v. State of Uttar Pradesh
and Udai Ram Sharma v. Union of India
.
47. The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the courts. The whole subject of election has been left to courts traditionally under the Common Law and election disputes and matters are governed by the Legislature. The question of the determination of election disputes has particularly been regarded as a special privilege of Parliament in England. It is a political question in the United States. Under our Constitution Parliament has inherited all the privileges, powers and immunities of the British House of Commons. In the case of election disputes Parliament has defined the procedure by law. It can at any time change that procedure and take over itself the whole question. There is, therefore, no question of any separation of powers being involved in matters concerning elections and election petitions.
48. When the constituent power exercises powers the constituent power comprises legislative, executive, and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority de fines 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 suigeneris. 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 329-A 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 ascertain facts which make the foundation of its own decision. The executive usually collects its materials through its departments. The judiciary acts in a field where there are two or more parties be fore it and upon evidence placed before it pronounces its verdict according to principles of natural justice. The legislature is entitled to obtain information from any source. The legislature may call witnesses. The rule of Audi Alterm Par tem is not applicable in a legislative process. Legislation is usually general. It may sometimes be for special reasons an individual case. There is no doubt that the constituent power is not the same as legislative power. The distinction between constituent power and legislative power is always to be borne in mind because the constituent power is higher in norm.
52. Judicial review in election disputes is not a compulsion. Judicial review of decisions in election disputes may be entrusted by law to a Judicial Tribunal. If it is to a Tribunal or to the High Court the judicial review will be attracted either under the relevant law providing for appeal to this Court or Article 136 may be attracted. Under Article 329(b) the contemplated law may vest the power to entertain election petitions in the House itself which may determine the dispute by a resolution after receiving a report from a special Committee. In such judicial review may be eliminated without involving amendment of the Constitution, The Constitution permits by amendment exclusion of judicial review of a matter if it is necessary to give effect to the Directive Principles of State Policy. A similar power may be available when such exclusion is needed in the larger interest of the security of the State. In either case the exclusion of judicial review does not mean that principles of equality are violated. It only means that the appropriate body making the law satisfied itself and determines conclusively that principles of equality have not been violated. That body conclusively makes classification for the purpose of applying the principles of equality. It is said that in this class of cases the answer to the question of the validity of the classification rests on factors to which the court has no access and the materials may be of highly confidential nature and the decision has to be on a matter of political necessity. If judicial review is excluded the court is not in a position to conclude that principles of equality have been violated
53. Equality of status as well as equality of opportunity is a fundamental right in Articles 14 and 16 of the Constitution. It also means equality before law and equal protection of the laws. Equality is spoken in the Preamble. There is liberty to legislature to classify to establish equality. When Articles 31-A and 31-B eliminated judicial review the meaning was not that the legislature would go on discriminating. The task of classification can be left to the legislature. It is the very nature of legislation that classification must be in public interest. The amending body has excluded judicial review in Articles 31-A, 31-B and 31-C.
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. Decisions 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 justly decided. Electoral offences are statutory ones. It is not possible to hold that the concept of free and fair election is a basic structure, as contended for by the respondent. Some people may advocate universal franchise. Some people may advocate proportional representation. Some people may advocate educational qualifications for voters. Some people may advocate property qualifications for voters. Instances can be multiplied on divergence of views in regard to qualifications for voters, qualifications of members, forms of corrupt practices. That is why there is law relating to and regulating elections.
56. Clause (4) in Article 329-A has done four things. First, it has wiped out not merely the judgment but also the election petition and the law relating thereto. Secondly, it has deprived the right to raise a dispute about the validity of the election by not having provided another forum. Third there is no judgment to deal with and no right or dispute to adjudicate upon. Fourth, the constituent power of its own legislative judgment has validated the election.
57. At the outset it has to be noticed that constituent power is not the same as ordinary law making power. On behalf of the appellant it was rightly contended that if any amendment of Article 105 of the Constitution had to be made, it had to be made by amendment of the Constitution. The matter does not rest there.
58. If no law prior to the Constitution (Thirty-ninth Amendment) Act will apply to election petitions or matters connected therewith the result is that there is not only no forum for adjudication of election disputes but that there is also no election petition in the eye of law. The insurmountable difficulty is in regard to the process and result of validating the election by Clause (4). Two answers were given on behalf of the appellant. One was that the validation of the election is itself the law. The other was that the constituent power applied its own norms to the election petition. Both the answers are unacceptable.' If the election petition itself did not have any existence in law there was no petition which could be looked into by the constituent power. If there was no petition to look into it is difficult to comprehend as to what norms were applied to the election dispute. The dispute has to be seen. The dispute has to be adjudicated upon.
59. Clause (4) suffers from these infirmities. First, the forum might be changed but another forum has to be created. If the constituent power became itself the forum to decide the disputes the constituent power by repealing the law in relation to election petitions and matters connected therewith did not have any petition to seize upon to deal with the same. Secondly, any decision is to be made' in accordance with law. Parliament has power to create law and apply the same. In the present case, the constituent 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 in 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 disputes. Parliament may itself hear election disputes. Whichever body will hear election disputes will have to apply norms. Norms are legal standards. There is no discrimination if classification on rational basis is made for determination of disputes relating to persons holding the office of Prime Minister or the Speaker. The changes effected by the Amendment Acts 1974 and 1975 apply to all and there is no discrimination. Retrospective legislation is not by itself discrimination. The changes introduced to the 1951 Act apply to all.
62. Clause 4 of Article 329-A in the present case invalidating the election has passed a declaratory judgment and not a law. The legislative judgment in Clause 4 is an exercise of judicial power. The constituent power can exercise judicial power but it has to apply law.
63. The validation of the election is not by applying legal norms. Nor can it be said that the validation of election in Clause 4 is by norms set up by the constituent power.
64. Clause 5 in Article 329-A states that an appeal against any order of any court referred to in Clause 4 pending, before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court, shall be disposed of in conformity with the provisions of Clause 4. The appeal cannot be disposed of in conformity with the provisions of Clause 4 inasmuch as the validation of the election cannot rest on Clause 4.
65. In view of the conclusion that the appeal cannot be disposed of in conformity with Clause 4, it is necessary to hear the appeals on other grounds in accordance with the provisions of the 1951 Act and the Amendment Acts, 1974 and 1975.
66. The second contention of the respondent is that the session of the Lok Sabha and the Rajya Sabha is invalid for these reasons. If the Executive illegally and unConstitutionally detains any person the detention affects the validity of the proceedings. A number of members of Parliament of the two Houses, namely, the Lok Sabha and the Rajya Sabha were detained by executive orders after 26th June, 1975 and before the summoning of a session of the two Houses of Parliament. Parliament commenced the sessions on 21st July, 1975. None of the members of Parliament were either supplied any grounds of detention or given any opportunity to make any representation against their detention. The President who was the authority to summon a session of Parliament issued the Presidential Order under Article 359 of the Constitution on 27th June, 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 order of the President who became a party to the unConstitutional and illegal detention of the members of Parliament by preventing them from securing their release.
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 to 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 Presidential Order under Article 359 is said by the respondent not to render the detention of a person either legal or Constitutional, and, therefore, such a detenu must be provided an opportunity to participate in the proceedings of the House. It is emphasised by the respondent that when important leaders of different parties are unConstitutionally prevented from participating in the session of the House, a session cannot be held for deliberations in which different members influence the views of others by their own participation. If in the holding of a session and in transacting business therein, the provisions of the Constitution are not complied with, this is said to amount to illegality or unConstitutionality and not a mere procedural irregularity within the meaning of Article 122(1) of the Constitution.
69. The essence of the respondent's contention is that the right of participation of some members of the House of Parliament in the proceedings of Parliament under Article 105(3) of the Constitution has been interfered with. When a member is excluded from participating in the proceedings of the House, that is a matter concerning Parliament and the grievance of exclusion is in regard to proceedings within the walls of Parliament. In regard to rights to be exercised within the walls of the House the House itself is the judge, (see May's Parliamentary Practice 18th Ed. pp. 82-83 (1884) 12 QBD 271 at pp. 285-286).
70. In Bradlaugh v. Gossett, (1884) 12 QBD 271 Bradlaugh claimed to make affirmation instead of taking the oath. He was permitted to make the affirmation "subject to any liability by statute", and took his seat. Upon an action for penalties it was decided, finally by the House of Lords, that Bradlaugh had not qualified himself to sit by making the affirmation. On re-election, he attempted to take the oath, but was prevented by order of the House which eventually directed the Serjeant to exclude him from the House until he undertook to create no further disturbance. Bradlaugh then brought an action against the Serjeant in order to obtain a "declaration that the order of the House was beyond the power and jurisdiction of the House and void, and an order restraining the Serjeant at Arms from preventing Bradlaugh by force from entering the House". It was held that the Court had no power to restrain the executive officer of the House from carrying out the order of the House. The reason is that the House is not subject to the control of the Courts in the administration of the internal proceedings of the House.
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 Serjeant to go to the Computer and demand his delivery. The Serjeant was resisted by the city officers, who were protected by the sheriffs. The Commons laid their case before the Lords. They ordered the Serjeant to repair to the sheriffs, and to require the 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 (1 Hatsell, 157). 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 Serjeant to demand his release. The warden refused to give up his prisoner. At length the warden delivered up the prisoner.
73. As Act 1 James 1.c. 13 was passed which while it recognised the privilege of freedom from arrest, the right of either House of Parliament to set a privileged person at liberty, and the right to punish those who make or procure arrests, enacted that after such time as the privilege of that session in which privilege is granted shall cease, parties may sue and execute a new writ. In 1700 an Act was passed which while it maintained the privilege of freedom from arrest with more distinctness than the Act 1 James I c. 13. made the goods of privileged persons liable to distress infinite and sequestration, between a dissolution or prorogation and the next meeting of Parliament, and during adjournments for more than fourteen days.
74. The composition of Parliament is not dependent on inability of a member to attend for whatsoever reason. The purpose of Article 85 is to give effect to the collective right of the House which represents the nation to be called as often as the situation demands, and in any case the interval between two sessions must not exceed six months. Assuming a conflict were to arise between the privileges of member under Article 105(3) and the functions of the House to assemble under Article 85 the privilege of the member will not prevail. The detention of members of Parliament is by a statutory authority in the exercise of his statutory powers.
75. The suspension under Article 359 of the remedy for the enforcement of fundamental rights is dependent on a Proclamation of Emergency under Article 352. Parliament has the power not to approve of the Proclamation and, thereafter the emergency shall cease to operate. The contention of the respondent means that Parliament cannot meet even so as to withhold approval of the emergency and thus terminate the suspension of the members' right of moving the Court. The Constitution provides for proclamation of emergency, the suspension of the remedy under Article 359 for enforcement of fundamental rights enabling even detention of members of Parliament when necessary. Article 85 is not suspended. The six months rule is obligatory. It follows that the members' rights under Article 105 are not available under a detention in these circumstances. For the purposes of Article 105(3) a conviction under Penal laws or detention under Emergency laws must be deemed to be valid till it is set aside.
76. When under Article 359 the President during the operation of a Proclamation of Emergency by order declares that the right to move any Court for the enforcement of rights conferred by Part III shall remain suspended and persons who are members of House of 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 Articles 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 (sic) it was held that the court could entertain a petition under Article 226 on the ground that the imposition of penalty by the legislature on a person who is not a member of the legislature or issuing process against such person for its contempt committed outside the four walls of the House.
79. The scope of the parliamentary privilege of freedom from arrest has been defined positively and negatively. The positive aspect of the privilege is expressed in the claim of the Commons to freedom from arrest in all civil actions or suits during the time of Parliament and during the period when a member was journeying or returning from Parliament. The privilege has been defined negatively in the claim of the Commons which specifically excepted treason, felony and breach of surety of the peace.
80. The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation. (See May's Parliamentary Practice 18th Ed. at p. 100). In early times the distinction between "civil" and "criminal" was not clearly expressed. The development of the privilege has shown a tendency to confine it more, narrowly to cases of a civil character and to exclude not only every kind of criminal case, but also cases which, while not strictly criminal partake more of a criminal than of a civil character. This development is in conformity with the principle laid down by the Commons in a conference with the Lords in 1641 : "Privilege of Parliament is granted in regard of service of the Commonwealth and is not to be used to the danger of the Commonwealth".
81. In Wilkes' case 19 State Tr., 981 it was resolved by both Houses on 29th November, 1763 that the privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an offence. "Since that time" the Committee of Privileges said in 1831 "it has been considered as established generally, that privilege, is not claimable for any indictable offence.
82. These being the general declarations of the law of Parliament, the House will not allow even the sanctuary of its walls to protect a Member from the process of criminal law, although a service of a criminal process on a Member within the precincts of Parliament, whilst the House is sitting without obtaining 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 14-B 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 18-B 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 House; the Committee reported that there was no breach of privilege involved. In the case of a member deported from Northen Rhodesia for non-compliance with an order declaring him to be a prohibited immigrant, the Speaker held there was no prima facie case of breach of privilege. (See May's Parliamentary Practice 18th Ed. p. 103).
84. In K. Anandan Nambiar v. Chief Secretary Government of Madras the petitioners who were members of Parliament and
detained by orders passed by the State Government under Rule 30(1)(b) of the Defence of India Rules, 1962 challenged the validity of the orders of detention on the ground that Rule 30(1)(b) was not valid because "a legislator cannot be detained so as to prevent him from exercising his Constitutional rights as such legislator while the legislative chamber to which he belongs is in session." The State raised a preliminary objection that the petitions were incompetent in view of the order issued by the President under Article 359(1) suspending the rights of any person to move any Court for the enforcement of rights conferred by Articles 14, 21 and 22. This Court held that the validity of the Act, Rule or order made under the Presidential Order could not be questioned on the ground that they contravene Articles 14, 21 and 22.
85. The petitioners also contended in Nambiar's case that Rule 30(1)(b) under which the orders of detention had been passed was invalid on grounds other than those based on Articles 14, 19, 21 and 22. The Court held that if that plea was well founded, the last clause of the Presidential Order was not satisfied, and, there fore, the bar created by it suspending the citizens' fundamental rights under Articles 14, 21 and 22 could not be pressed into service by the respondent.
86. Articles 79, 85, 86, 100(1) and 105(3) were considered in Nambiar's case in relation to rights of Members of Parliament, and it was held that the totality of rights cannot claim the status of fundamental rights and freedom of speech on which reliance was placed is a part of the privileges falling under Article 105. The reason is that freedom from arrest under a detention order is not recognised as a privilege which can be claimed by members of House of Commons in England. This Court then posed the question that if a claim for freedom from arrest by a detention order could not be sustained under the privileges of the Members of Parliament whether it could be sustained on the ground that it is a Constitutional right which could not be contravened. The statement in May's Parliamentary Practice 7th Ed. at p. 78 which is to be found in the 18th Edition at p. 100 that the privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation was accepted as the basis of two propositions laid down in Nambiar's case (supra), First, Articles 79, 85, 86, 100 and 105 cannot be construed to confer any right as such on individual Members or impose any obligation on them. It is not as if a Member of Parliament is bound to attend the session, or is under an obligation to be present in the House when the President addresses it. The context in which these Articles appear shows that the subject-matter of these Articles is not the individual rights of the Members of Parliament, but they refer to the right of the President to issue a summons for the ensuing session of Parliament or to address the House or Houses. Second, the freedom of speech to which Article 105 refers would be available to a Member of Parliament when he attends the session of the Parliament. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded.
87. The second ground of challenge that there was no valid session of the House cannot be accepted for the reasons given above. It has also to be stated that it is not open to the respondent to challenge the orders of detention collaterally. The principle is that what is directly forbidden cannot be indirectly achieved.
88. The High Court found first that the appellant has to be regarded as a candidate from 29th December, 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 within the Government of India. The High Court found that Yashpal Kapur's resignation from his service though submitted on 13th January, 1971 did not become effective until 25th January, 1971 when it was notified. The further finding by the High Court is that Yashpal Kapur under the instructions of the appellant delivered election speech on 7th January, 1971 at Munshi Gani and another speech at Kalan on 19th January, 1971. The third finding by the High Court is that the appellant and her election agent Yashpal Kapur procured and obtained the assistance of the officers of the State Government, particularly, the District Magistrate, the Superintendent of Police, the Executive Engineer. P.W.D. and the Engineer to Hydel Department for the construction of rostrums and arrangement for supply of power for loudspeakers at meetings addressed by the appellant on 1st February, 1971 and 25th February, 1971 and further that the said assistance was for furtherance of the prospects of election of the appellant. The High Court found the appellant guilty of corrupt practice under Section 123(7) of the 1951 Act. The High Court declared the election of the appellant to be void. The High Court also held the appellant to be disqualified for a period of six years from the date of the order.
89. The definition of "candidate" in Section 79(b) of the 1951 Act until the amendment thereof by the Election Laws (Amendment) Act, 1975 was as follows:
'Candidate' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.
90. This definition has now been substituted by Section 7 of the Amendment Act, 1975, as follows:
'Candidate' means a person who has been or claims to have been duly nominated as a candidate at any election.
91. Section 10 of the Amendment Act, 1975 further enacted that the amendments shall have retrospective operation so as to apply to and in relation to any election held before the commencement of the Amendment Act, 1975 on 6th August, 1975 to either House of Parliament or to either House or the House of the Legislature of a State, inter alia, (iv) in respect of which appeal from any order of any High Court made in any election petition under Section 98 or Section 99 of the 1951 Act is pending before the Supreme Court immediately before such commencement.
92. Section 9 of the Amendment Act, 1975 has substituted Clause (a) in Section 171-A of the Indian Penal Code and a "candidate" means for the purpose of Section 171-A of the Indian Penal Code a person who has been nominated as a candidate at any election. Previously the definition of "candidate" in Section 171-A of the Indian Penal Code was the same as in Section 79(b) of the 1951 Act prior to the amendment thereof by the Amendment Act, 1975. In Section 171-A of the Indian Penal Code there was a proviso to the effect that candidate would mean a person who holds himself out as a prospective candidate provided he is subsequently nominated as a candidate.
93. Relying on the provisions introduced by the Amendment Act, 1975, it is contended on behalf of the appellant that she will be regarded as a candidate only from 1st February, 1971, namely, the date when she has been duly nominated as a candidate at her election, and, therefore, the finding of the High Court cannot be sustained. It is also contended by the appellant that the finding of the High Court that Yashpal Kapur delivered election speeches on 7th January, 1971 and 19th January, 1971 under instructions of the appellant cannot be supported because the appellant was not a candidate either on 7th January, 1971 or on 19th January, 1971.
94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not to be effective until 25th January, 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,
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.
96. The effect of Explanation (3) at the end of Section 123(7) of the 1951 Act incorporated by the notification dated 25th January, 1971 in the Gazette dated 6th February, 1971 makes the fact of the resignation of Yashpal Kapur from his service fully effective from 14th January, 1971. It is, therefore, contended that from 14th January, 1971 Yashpal Kapur was not a Government servant.
97. To constitute a corrupt practice within the meaning of Section 123(7) of the 1951 Act the act complained of must be an act of obtaining or procuring of assistance of the categories of Government servants mentioned therein by the candidate or his election agent or by any other person with the consent of the candidate or his election agent. Section 100(1)(b) of the 1951 Act enacts that if the High Court is of opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. A returned candidate is defined in Section 79(f) of the 1951 Act to mean a candidate whose name has been published under Section 67 of the 1951 Act as duly elected. A returned candidate in order to be guilty of a corrupt practice within the meaning of Section 123(7) of the 1951 Act must be guilty of any of the acts mentioned in the different sub-sections of Section 123 as a candidate. The appellant contends that the appellant was not a candidate on 7th January, 1971 or 19th January, 1971 and there could not be any procuring or obtaining of any assistance by the appellant as a candidate or by anybody else with the consent of the appellant. All the sub-sections of Section 123 of the 1951 Act refer to the acts of a candidate or his election agent or any other person with the consent of the candidate or his election agent. The present definition of "candidate" which has retrospective effect is con tended to exclude completely acts by candidate prior to the date he is nominated as a candidate.
98. The third finding by the High Court that the appellant and her election agent Yashpal Kapur procured and obtained the assistance of the officers of the State Government, particularly, the District Magistrate, the Superintendent of Police, the Executive Engineer, P.W.D. and the Engineer to Hydel Department for construction of rostrums and arrangement for supply of power for loudspeakers and for their assistance for furtherance of the prospects of the election of the appellant has to be tested in the light of the provisions contained in Section 123(7) of the 1951 Act. Under the said provision 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 any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.
99. The proviso aforesaid shows that where persons in the service of the Government in the discharge of official duty make any arrangement or provide any facility or do any act or thing in relation to a candidate, such arrangements and facilities shall not be deemed to be assistance for furtherance of the prospect of the candidate's election. Therefore, the service rendered by Government servants for construction of ro strums and arrangements for supply of power for loudspeakers according to the contention of the appellant could not be considered as assistance for the furtherance of the prospects of the election of the appellant.
100. The contentions of the appellant can succeed if the Amendment Acts of 1974 and 1975 are valid. The respondent has challenged the Constitutional validity of these Acts. Therefore, that question has to be examined before the appellant's contentions can be answered.
101. The respondent in cross-appeal challenged the findings of the High Court on issue No. 9 and contended that the High Court should have held that the election expenses of the appellant exceeded the limit. The respondent also challenged the finding of the High Court with regard to issue No. 6 and contended that the High Court should have held that the symbol of cow and calf was a religious symbol and the appellant committed corrupt practice as defined in Section 123(3) of the 1951 Act. The respondent did not press issues Nos. 4 and 5 which related to distribution of quilts, blankets, dhoties and liquor. The respondent also abandoned Issue No. 7 which related to voters being conveyed to the polling stations free of charge on vehicles hired and procured by Yashpal Kapur.
102. The issue pressed by the respondent was that the appellant and her election agent Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by Section 77 of the 1951 Act read with Rule 90. The respondent alleged that the election expenses of the appellant, inter alia, were Rs. 1,28,700 on account of hiring charges of vehicles, Rs. 43,230/- on account of cost of petrol and diesel; Rs. 9,900/- on account of payment made to the drivers of the vehicles. The respondent further alleged that the appellant spent Rs. 1,32,000/- on account of construction of rostrums for public meetings on 1st February, 1971 and 25th February, 1971. The respondent contended that the findings of the High Court should be reversed.
103. The High Court found that the election expenses furnished by the appellant were Rs. 12,892.97. The High Court added another sum of Rs. 18,183.50. The three items which were added by the High Court were cost of erection of rostrums amounting to Rs. 16,000/, cost incurred in installation of loudspeakers amounting to Rs. 1,951 / - and cost for providing car transport to respondent No. 1 amounting to Rs. 232.50. The total election expenses found by the High Court came to Rs. 31,976.47 which was below the prescribed limit of Rs. 35,000/-.
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 been engaged by the District Congress Committee for election work in Rae Bareli, Amethi and Ram Sanehi Ghat constituencies, and, therefore, the vehicles should be derequisitioned. Dal Bahadur Singh thereafter wrote a note to Yashpal Kapur and requested that the letter be sent to the District Election Officer to that effect. Yashpal Kapur wrote a letter to the District Election Officer and repeated the prayer contained in Dal Bahadur Singh's letter. It was, therefore, contended that because Yashpal Kapur was the election agent of the appellant and he moved for the derequisition of the vehicles it should be inferred that the vehicles were engaged for the election of the appellant. Yashpal Kapur said that the vehicles were used in the three Parliamentary constituencies. The High Court rightly held that the evidence did not establish that the vehicles had been used for the election work of the appellant. The High Court also correctly found that there was no evidence to show that Yashpal Kapur made any propaganda from the vehicles in any manner for the purpose of the election.
106. With regard to the expenses for the erection of rostrums the respondent contended that the appellant's election expenses should include Rs. 1,32,000/- as the costs for erection of rostrums for the meetings on 1st February, 1971 and the meeting on 25th February, 1971. The High Court held that Rs. 16,000/- could only be added to the election expenses of the appellant consisting of Rs. 6,400/- for four rostrums and Rs. 9,600/- for six rostrums.
107. The amount of Rs. 16,000/- which was added by the High Court on account of cost of erection of rostrums cannot be included in the election expenses of the appellant by reason of amendment to Section 77 of the 1951 Act by the Amendment Act, 1975, Explanation 3 has been added as follows:
For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in Clause (7) of Section 123 in the discharge or purported discharge of the 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 this sub-section.
108. By the Amendment Act, 1975 a proviso has been added to Section 123(7) of the 1951 Act to the effect that arrangements made or facilities provided or any act done by a Government servant belonging to the class mention ed there in the discharge of official duty shall not be 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 reaction 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 Rs. 69,930/- on 4th March, 1971 and on the other there was a withdrawal of Rs. 40,000/- on 4th March, 1971 and of Rs. 25,000/- on 6th March, 1971, and, therefore, the sum of Rs. 65,000/- should be added to the election expenses of the appellant. When it was put to Yashpal Kapur that the sums of Rs. 40,000/- and Rs. 25,000/- were withdrawn by Dal Bahadur Singh. Yashpal Kapur said that he was not aware of it. There is no pleading in the election petition that the appellant authorised incurring expenditure by a political party. There is no pleading that any amount has been paid by the political party. There is no complaint in the petition about the sum of Rs. 65,000/- or the sum of Rs. 69,930/-Yashpal Kapur denied knowledge of Rs. 70,000/-. The appellant was not asked a single question. There is no evidence to identify any of these payments with the election of the appellant.
110. It is appropriate at this stage to refer to the amendment which was introduced by the Amendment Act, 1974. The appellant relies on the provision to show that expenses incurred or authorised by a political party cannot be included in election expenses. Explanation I which was inserted at the end of Section 77 of the 1951 Act by Amendment Act, 1974 is that any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by an individual other than the candidate or his election agent shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or authorised by the candidate or by his election agent.
111. A proviso was also added to the aforesaid Explanation I by the Amendment Act, 1974. The proviso stated that nothing contained in the Explanation shall affect (a) any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People (Amendment) 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.
112. Explanation 2 which was added to Section 77 of the 1951 Act by the Amendment Act, 1974 is as follows:
For the purposes of Explanation I "political party" shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force.
113. Counsel for the respondent relied on the recent decision of this Court in Kanwar Lal Gupta v. Amarnath Chawla in
support of the proposition that there has been 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 effected 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 authorised by the candidate. Furthermore, the ruling in Kanwar Lal Gupta's case (supra) is no longer good law because of the legislative changes.
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 Rs. 65,000/- which was drawn by the Congress Committee should have been held by the High Court on a reasonable inference to have been spent by the District Congress Committee as having been authorised by the election agent of the appellant. Second, the High Court has not taken into account expenses of the election agent at 12 meetings other than the meetings addressed by the appellant and has also not taken into account the telephone expenses of the election agent. The telephone expenses amounted to Rs. 836.85 between 11th January, 1971 and 10th February, 1971 and a further sum of Rs. 2,514/- for the period 11th February, 1971 to 15th March, 1971. Third, it is said that there were 5000 polling booths and if 20 workers were required per booth then 10,000 workers would be required and the only inference is that an amount in excess was spent for workers with the authority of the election agent.
115. In Issue No. 9 there was no amount alleged with regard to telephone bills or election meetings under the heading of alleged election expenses. There was no allegation to that effect in the petition. With regard to expenses for the alleged 12 meetings addressed by the election agent the evidence of Yashpal Kapur is that he addressed about a dozen meetings and he did not include in the election return the expenses incurred for installation of loudspeakers because the expenditure was not incurred by him. He also said that he did not include in the election return the expends incurred over the construction of platforms because the meetings were arranged by the District Congress Committe. No allegations were made in the petition with regard to any alleged sum of money on account of election meetings were the election agent spoke. The High Court rightly said that the telephone expenses and expenses for meetings could not be taken into consideration because no suggestion of the case was made until the stage of arguments.
116. The respondent's submission is that the appellant was the Prime Minister at the time of the election, and, therefore, there was a big campaign and the expenses were enormous. That will mean little. Expenses incurred or authorised by a political party are under the Amendment Act, 1974 not to be deemed to be expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purposes of Section 77 of the 1951 Act. The part played by a political party in connection with candidates of the party at the election particularly in relation to expenditure incurred by the political party with regard to candidates of 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 to be taken note of. Where vehicles were engaged by the Congress Committee and used by the candidate, the amount spent by the Congress Committee could not be taken to be included in the expenditure of the candidate's election expenses (See Hans Raj v. Pt. Hari Ram (1968) 40 Ele LR 125 (SC)).
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 (1969) 42 Ele LR 307 (SC)). In Rananjaye 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 Mangaer, 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 given those employees a holiday on full pay and they voluntarily worked in connection with the election of the appellant. Persons who volunteer to work cannot be said to be employed or paid by the candidate or by his election agent.
118. In Ram Dayal v. Brijraj Singh the appellant
challenged the election of the respondent on the ground that the Maharaja and the Rajmata of Gwalior had helped the respondent's election in a number of ways and acted as his agents and the respondent incurred considerable expenditure which exceeded the limit. This Court found that assuming the expenditure was incurred by the Maharaja and the Rajmata of Gwalior for the purpose of canvassing votes, in the absence of any evidence to show that the Maharaja and the Rajmata acted as election agents or that the expenditure was authorised by the respondent, it was not liable to be included in the election expenses.