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.

8. In Section 123 of the principal Act,

(a) in Clause (3), the following proviso shall be inserted at the end, namely :

'Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'

(b) in Clause (7), the following proviso shall be inserted at the end, namely :

'Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any 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.'.

(c) in the Explanation at the end, the following shall be added, namely:

(3) For the purposes of Clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a 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, 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.'

9. In the Indian Penal Code, in Section 171-A, for Clause (a), the following clause shall be substituted, namely:

'(a) 'candidate' means a person who has been nominated as a candidate at any election,'

10. The amendments made by Sections 6, 7 and 8 of this Act in the principal Act shall also have retrospective operation so as to apply to and in relation to any election held before the commencement of this Act to either House of Parliament or to either House or the House of the Legislature of a State

(i) in respect of which any election petition may be presented after the commencement of this. Act; or

(ii) in respect of which any election petition is pending in any High Court immediately before such commencement; or

(iii) in respect of which any election petition has been decided by any High Court before such commencement but no appeal has been preferred to the Supreme Court against the decision of the High Court before such commencement and the period of limitation for filing such appeal has not expired before such commencement; or

(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 principal Act is pending before the Supreme Court immediately before such commencement.

169. It is submitted by Mr. Shanti Bhushan on behalf of the respondent that the amendments made in the RP Act have an impact upon five out of the seven grounds which were set up by the respondent to assail the election of the appellant.

170. On August 10,1975 the Constitution (Thirty-ninth Amendment) Act, 1975 was published. A number of Constitutional changes were made by the Constitution Amendment Act. We are, however, concerned with Section 4 of the Constitutional Amendment Act which inserted Article 329-A in the Constitution after Article 329. Article 329-A reads as under:

329-A. Special provision as to elections to Parliament in the case of Prime Minister and Speaker.- (1) Subject to the provisions of Chapter II of Part V (Except Sub-clause (e) of Clause (1) of Article 102), no election

(a) to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election;

(b) to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election;

shall be called in question, except before such authority (not being any such authority as is referred to in Clause (b) of Article 329) or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned.

(2) The validity of any such law as is referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court.

(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in Clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in Clause (1).

(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4).

(6) The provisions of this article shall have effect notwithstanding anything contained in this Constitution.

171. Section 5 of the above Constitution Amendment Act inserted in the Ninth Schedule to the Constitution a number of enactments including the RP Act as also Acts 58 of 1974 and 40 of 1975.

172. At the hearing of the appeal Mr. Sen on behalf of the appellant has relied upon Clause (4) of the new Article 329-A and has contended that that clause clearly applies to the present case. It is urged that in view of that clause no law made by Parliament before the coming into force of the Constitution (Thirty-ninth Amendment) Act, 1975, i.e. , before August 10, 1975, in so far as it relates to the election petitions and matters connected there with shall apply or shall be deemed ever to have applied to or in relation to the election to the Lok Sabha of the appellant who being Prime Minister is one of the persons referred to in Clause (1) of that article. It is further submitted that in view of that clause, the election of the appellant shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law. Mr. Sen also adds that notwithstanding the order made by the High Court before such commencement declaring the election of the appellant to be void, her election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. Submission is consequently made that in view of the mandate contained in Clause (5) of the article, the appeal filed by the appellant and the cross appeal filed by the respondent should be disposed of in conformity with the provisions of Clause (4).

173. In reply Mr. Shanti Bhushan on behalf of the respondent has not controverted, and in our opinion rightly, the stand taken by Mr. Sen that Clause (4) of the article applies to the facts of the present case. He, however, contends that Section 4 of the Constitution Amendment Act which has inserted Article 329-A in the Constitution is invalid. The validity of the above Constitutional amendment has been challenged by Mr. Shanti Bhushan on the following two grounds:

(1) The above Constitutional amendment affects the basic structure or framework of the Constitution and is, therefore, beyond the amending power under Article 368.

(2) The Constitution Amendment Act was passed in a session of Parliament after some members of Parliament had been unConstitutionally detained and thus illegally prevented from influencing the views of other members present at the time the above Act was passed. This ground, it is urged, also affects the validity of the amending Act 40 of 1975.

174. Article 329-A deals with election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election and to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election. According to Clause (1) of Article 329-A, no election of persons mentioned above shall be called in question, except before such authority or body and in such manner as may be provided for by or under any law made by Parliament. It is made clear that the authority before which such election shall be called in question would not be the one as is referred to in Clause (b) of Article 329. The law to be made by Parliament under Clause (1) may provide for all other matters relating to doubts and dispute in relation to such election including the grounds on which such election may be questioned. The above law shall be subject to the provisions of Clause (1) of Article 102 except Sub-clause (e). The law made under Clause (1) cannot, therefore, remove the disqualification for being chosen a member of either House of Parliament because of that person holding an office of profit or because of his unsoundness of mind or because of his being an undischarged insolvent or because of his being not a citizen of India, or because of his having voluntarily acquired the citizenship of a foreign State, or because of his being under any acknowledgment of allegiance or adherence to a foreign State, as contemplated by Sub-clauses (a) to (d) of Clause (1) of Article 102 of the Constitution. The law made under Clause (1) of Article 329-A would not, however, be subject to Clause (e) of Clause (1) of Article 102, according to which a person shall be disqualified for being chosen as and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament, According to Clause (2) of Article 329-A, the validity of a law referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court. Clause (3) provides for the abatement of an election petition which is pending in respect of the election of any person who is appointed as Prime Minister or chosen as Speaker of the House of the People during the pendency of the petition. It is further provided that the election of such person can be called in question under any such law as is referred to in Clause (1) of Article 329-A. Clause (4) is the crucial clause for the present case. According to this clause, no law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any of the persons mentioned above to either House of Parliament. The remaining part of the clause deals with some further matters. It is provided in Clause (4) that the election of the aforesaid person shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law. It is further provided that notwithstanding any order made by any court before the commencement of the Constitution (Thirty-ninth Amendment) Act declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. According to Clause (5), any appeal or cross appeal against any such order as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4). Clause (6) states that the provisions of Article 329-A shall take effect notwithstanding anything contained in the Constitution.

175. The proposition that the power of amendment under Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution was laid down by this Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharathi v. State of Kerala . Apart from other reasons which were given in some of the judgments of the learned Judges who constituted the majority, the majority dealt with the connotation of the word "amendment." It was held that the words "amendment of the Constitution" in Article 368 could not have the effect of destroying or abrogating the basic structure of the Constitution. Some of us who were parties to that case took a different view and came to the conclusion that the words "amendment of the Constitution" in Article 368 did not admit of any limitation. Those of us who were in the minority in Kesavananda's case (supra) may still hold the same view as was given expression to in that case. For the purpose of the present case, we shall have to proceed in accordance with the law as laid down by the majority in that case.

176. Before dealing with the question as to whether the impugned amendment affects the basic structure of the Constitution, I may make it clear that this Court is not concerned with the wisdom behind or the propriety of the impugned Constitutional amendment. These are matters essentially for those who are vested with the authority to make the Constitutional amendment. All that this Court is concerned with is the Constitutional validity of the impugned amendment.

177. I may first deal with the second contention advanced by Mr. Shanti Bhushan. According to him, the impugned Constitutional amendment and the amending Act of 1975 were passed in sessions of Parliament wherein some members, including the respondent, could not be present because they had been illegally detained. The fact that those measures were passed by the requisite majority has not be questioned by the learned Counsel but he submits that if the above mentioned members had not been detained and had not been prevented from attending the sittings of Parliament, they could have influenced the other members and as such it is possible that the impugned Constitution Amendment Act and the 1975 RP amending Act might not have been passed. Mr. Shanti Bhushan accordingly asserts that the sittings of the Houses of Parliament in which the above mentioned two measures were passed were not legal sittings. Any measure passed in such sittings, according to the learned Counsel, cannot be considered to be a valid piece of Constitutional amendment or statutory amendment.

178. There, is in my opinion, no force in the above submission. The proposition that a member of Parliament cannot claim immunity from being detained under a law relating to preventive detention does not now admit of much doubt. The privileges, powers and the immunities of the members of the two Houses of Indian Parliament as well as of the Indian legislatures as the same as those of the members of the House of Commons as they existed at the time of the commencement of the Constitution. The position about the privileges of the members of the House Of Commons as it obtained in the United Kingdom the relevant time has been stated in Erskine lay's Parliamentary Practice, 18th Ed. (p. 100) as under:

The privilege of freedom from arrest is omitted to civil causes, and has not been allowed to interfere with the administration of criminal justice (sic) emergency legislation.

The above observations were relied upon by this Court in the case of K. Anandan Nambiar v. Chief Secretary Government of Madras . The petitioners in that case were members of

Parliament. They were retained by orders passed by the State Government under Rule 30(1)(b) of the Defence of India Rules, 1962. They challenged the validity of the orders of detention, inter alia, on the ground that Rule 30(1)(b) was invalid because a legislator cannot be detained so as to prevent him from exercising his Constitutional rights as legislator while the legislative chamber to which he belongs is in session. This Court rejected that contention and held that the true Constitutional position is that so far as a valid order of detention is concerned, a member of Parliament can claim no special status higher than that of an ordinary citizen and that he is as much liable to be arrested and detained under it as any other citizen. It was also held that if an order of detention validly prevents a member from attending a session of Parliament no occasion would arise for the exercise by him of the right of freedom of speech.

179. Question as to whether a member of Parliament has been validly detained under a law relating to preventive detention can, in my opinion, be appropriately gone into in proceedings for a writ of habeas corpus. Such question cannot be collaterally raised in proceedings like the present wherein the court is concerned with the validity of a Constitution Amendment Act and an Act to amend the Representation of the People Act. In deciding a case before it the court should decide matters which arise directly in the case. A court should resist the attempt of a party to induce it to decide a matter which though canvassed during arguments is only incidental and collateral and can appropriately be dealt with in separate proceedings.

180. The contention advanced by Mr. Shanti Bhushan that the sittings of the two Houses of Parliament in which the impugned Acts were passed were not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are Constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not Constitutionally valid because some members of those Houses were prevented from attending and participating in the discussions in those Houses. It has not been disputed before us, as already mentioned, that the impugned Constitution Amendment Act and the statutory amendment Act were passed by the requisite majority. It is not the case of the respondent that the number of the detained members of Parliament was so large, that if they had voted against the impugned measures, the measures would not have been passed. Indeed, according to the affidavit filed during the course of arguments, the number of members of the Lok Sabha who were detained was 21 and of the Rajya Sabha the number was 10. An amendment of the Constitution under Article 368, it is noteworthy, has apart from the requirement in certain cases of ratification by the State legislatures, to be passed in each House of Parliament by majority of the total membership of that House and by a majority of two-thirds of the members of that House present and voting. According to Clause (1) of Article 100 of the Constitution, save as otherwise provided in this Constitution, save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes. Clause (2) of that article provides that either House of Parliament shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings. Further, it is provided in Clause (1) of Article 122 that the validity of any proceedings of Parliament shall not be called in question on the ground of any alleged irregularity of procedure. All this would show that the framers of the Constitution were anxious to ensure that the procedural irregularities and other grounds like those mentioned in Clause (2) of Article 100 should not vitiate the validity of proceedings of Parliament and that it would not be permissible to call in question those proceedings on such grounds. The observations on page 456 in the case of Special Reference No. 1 of (sic) that if the impugned proceedings of a legislature are illegal and unConstitutional and not merely irregular, the same can be scrutinized in a court of law do not, in my opinion, warrant the inference that a court can hold the proceedings of a legislature to be not valid and Constitutional by going into the question as to whether the detention of any member who was prevented from being present in the sitting of the legislature on account of his detention was or was not in accordance with law. The acceptance of the above submission of Mr. Shanti Bhushan would necessarily result in a situation that whenever a law is made by Parliament, it would be open to a person affected by that law to question the validity of that law by asking the court to examine the validity of detention of each of the members of Parliament who were under detention at the time the said law was passed even though those members do not themselves assail the validity of their detention. It is plain that it would not be possible for the court in such collateral proceedings to record a finding about the validity of the detention of the members because the full material having a bearing on the validity of the detention would normally be, apart from the authority passing the order for detention, only with the person ordered to be detained or his friends and relatives. It would plainly be hazardous to record a finding without such material and a court of law, in my opinion, should decline to record such a finding in collateral proceedings. Till such time as a finding is recorded in appropriate proceedings about the validity of the detention of the members of Parliament, the court would have to proceed upon the assumption that the detention has not been shown to be invalid.

181. According to Clause (3) of Article 105 of the Constitution, to which a short reference has been made earlier, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution. No law contemplated by Clause (3) has been made by the Parliament in India and as such we have to find out the powers, privileges and immunities of the House of Commons in the United Kingdom at the relevant time. In the case of Bradlaugh v. Gossett (1884) 12 QBD 271 the plaintiff, having been returned as member for the borough of Northampton, required the Speaker of the House of Commons to call him to the table for the purpose of taking oath. In consequence of something which had transpired on a former occasion the Speaker declined to do so. The House of Commons then upon motion resolved "that the Sergeant-at-Arms do exclude Mr. Bradlaugh (the plaintiff) from the House until he shall engage not further to disturb the proceedings of the House." In an action against the Sergeant-at-Arms praying for an injunction to restrain him from carrying out the resolution, the court held that this being a matter relating to the internal management of the procedure of the House of Commons, the court had no power to interfere. Dealing with the rights to be exercised within the walls of the House, Stephen J. observed that those rights must be dependent upon the resolution of the House. He also added that there was no appeal from the decision of the House of Commons. Stephen J. in the course of the judgment also observed:

...for the purpose of determining on a right to be exercised within the House itself, and in particular the right of sitting and voting, the House and the House alone could intepret the statute but...as regarded rights to be exercised out of and independently of the House, such as the right of suing for a penalty for having sat and voted, the statute must be interpreted by this Court independently of the House.

The above passage has been cited on page 83 in Erskine May's Parliamentary Practice, 18th Ed. with a view to show that it is a right of each House of Parliament to be the sole judge of the lawfulness of its own proceedings. It would follow from the above that the courts cannot go into the lawfulness of the proceedings of the Houses of Parliament.

182. The act of detaining a person is normally that of an outside agency and not that of the House of Parliament. It would certainly look anomalous if the act of an outside agency which might ultimately turn out to be not legal could affect the validity of the proceedings of the House of Parliament or could prevent that House from assembling and functioning.

183. The matter can also be looked at from another angle. Gazette copies of the Election Laws Amendment Act, 1975 (Act 40 of 1975) and the Constitution (Thirty-ninth Amendment) Act, 1975 have been produced before us. In the face of the publication in the Gazette of the above mentioned two Acts this Court must assume that those two Acts were duly passed. It may be pertinent in this context to refer to the position in the United States where it was laid down in the case of Marshall Field & Co. v. John M. Clark (1892) 143 US 649 as under:

The signing by the Speaker of the House of Representatives, and by the President of the Senate in open session, of an enrolled bill, is an official attestation by the two houses that such bill has passed Congress; and when the bill, thus attested receives the approval of the President, and is deposited in the public archieves, its authentication as a bill that has passed Congress is complete and unimpeachable. An enrolled Act thus authenticated is sufficient evidence of itself that it passed Congress.

In the case of a Constitutional amendment which requires ratification by the States, the position was stated by Brandeis J. in the case of Oscar Leser v. J. Mercer Garnett (1921) 66 L ed 505 as follows:

The proclamation by the Secretary certified that, from official documents on file in the Department of State, it appeared that the proposed Amendment was ratified by the legislatures of thirty-six states, and that it 'has become valid to all intents and purposes as a part of the Constitution of the United States'. As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts.

184. I am, therefore, of the view that the Constitutional validity of the Constitution Amendment Act and the 1975 Act amending the Representation of the People Act cannot be assailed on the ground that some members of Parliament were prevented because of their detention from attending and participating in the proceedings of the respective Houses of Parliament.

185. We may now deal with Clause (4) of Article 329A which has been added by the Constitution (Thirty-ninth Amendment) Act, 1975. It is necessary to clarify at the outset that we are concerned in the present case only with the Constitutional validity of Clause (4) and not with that of the other clauses of that article. I, therefore, express no opinion about the validity of the other clauses of Article 329A. Clause (4) consists of four parts:

(i) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply or shall be deemed even to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament;

(ii) and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law;

(iii) and notwithstanding any order made by any court before such commencement declaring such election to be void, such election shall continue to be valid in all respects;

(iv) and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

186. In so far as part (i) is concerned, I find that it relates to a matter which can be the subject of an ordinary legislation or a Constitutional amendment. According to this part, no law made by Parliament before the commencement of the Constitution (39th Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply and shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament. A law in the above terms can validly be made by a legislature as well as by a constituent authority. The fact that the above law would have retrospective effect would not detract from the competence of the legislature or constituent authority to make such a law. It is well-settled that it is permissible for a legislature to make a law with retrospective effect. The power of a legislature to make a law with retrospective effect is not curtailed or circumscribed by the fact that the subject matter of such retrospective law is a matter relating to an election dispute (see State of Orissa v. Bhupendra Kumar Bose and Kanta Kathuria v. Manak Chand Surana

. Detailed reference to these cases would be made at the appropriate stage subsequently. If a legislature can pass legislation in respect of matters relating to an election dispute with a retrospective effect, the constituent authority, which is a kind of super legislature, would a fortiori be entitled to do so.

187. Part (ii) of Clause (4) spells out the consequence which flows from part (i) of the clause. If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election of the Prime Minister and the Speaker, it would necessarily follow that the election of the appellant who was the Prime Minister would not be deemed to be void or ever to have become void on the ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law.

188. The same, to some extent, appears to be true of part (iv) of Clause (4). If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election of the appellant, the High Court shall be deemed to have had no jurisdiction to decide the election petition challenging the election of the appellant. The effect of part (i) of Clause (4) is that the High Court was divested of the jurisdiction to decide the dispute relating to the election of the appellant with a retrospective effect. The law under which the election of the appellant was declared to be void as a result of the amendment was also made inapplicable with retrospective effect to the dispute relating to the election of the appellant. The resultant effect of the amendment thus was that the order by which the election of the appellant was declared to be void and the findings on which such order was based were rendered to be void and of no effect.

189. Another aspect of part (iv) of Clause (4) relates to the question as to whether it is open to the constituent authority to declare an order and a finding of the High Court to be void and of no effect or whether such a declaration can be made only either in separate judicial proceedings or in proceedings before a higher court.

190. A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality

Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. Municipal Corporation of the City of Ahmedabad etc.

v. New Shorock Spg. & Wvg. Co. Ltd. etc. and State of Tamil Nadu v. M. Rayappa Gounder ).

191. The position as it prevails in the United States, where guarantee of due process of law is in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d as under:

The general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify, or impair the final judgment of a court of competent jurisdiction, so as to take away private rights which have become vested by the judgment. A statute attempting to do so has been held unConstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the Constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal.

10.- Judgment as to public right.

With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation.

192. Question arises whether the above limitation imposed upon the legislature about its competence to declare a judgment of the court to be void would also operate upon the constituent authority?

193. View has been canvassed before us that the answer to the above question should be in the negative. Although normally a declaration that the judgment of a court is void can be made either in separate proceedings or in proceedings before the higher court, there is, according to this view, no bar to the constituent authority making a declaration in the Constitutional law that such an order would be void especially when it relates to a matter of public importance like the dispute relating to the election of a person holding the office of Prime Minister. The declaration of the voidness of the High Court judgment is something which can ultimately be traced to part (i). Whether such a declaration should be made by the court or by the constituent authority is more, it is urged, a matter of the mechanics of making the declaration and would not ultimately affect the substance of the matter that the judgment is declared void. According to Article 31B, without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power to any competent Legislature to repeal or amend it, continue in force. The effect of the above article, it is pointed out, is that even if a statute has been declared to be void on the ground of contravention of fundamental rights by a court of law, the moment that statute is specified by the constituent authority in the Ninth Schedule to the Constitution, it shall be deemed to have got rid of that voidness and the order of the court declaring that statute to be void is rendered to be of no effect. It is not necessary in such an event to make even the slightest change in the statute to rid it of its voidness. The stigma of voidness attaching to the statute because of contravention of fundamental rights found by the Court is deemed to be washed away as soon as the statute is specified by the constituent authority in the Ninth Schedule and the judgment of the Court in this respect is rendered to be inoperative and of no effect. In the case of Don John Douglas Liyange v. The Queen 1967 AC 259 the Judicial Committee struck down as ultra vires and void the provisions of the Criminal Law (Special Provisions) Act, 1962 on the ground that they involved the usurpation and infringement by the legislature of the judicial powers inconsistent with the written Constitution of Ceylon. Their Lordships, however, expressly referred on page 287 to the fact that the impugned legislation had not been passed by two-thirds majority in the manner required for an amendment of the Constitution contained in Section 29(4) of the Constitution. It was observed:

There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse to Section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires.

The above observations, it is urged, show that the restriction upon the legislature in encroaching upon judicial sphere may not necessarily hold good in the case of constituent authority.

194. The above contention has been controverted by Mr. Shanti Bhushan and he submits that the limitation on the power of the legislature that it cannot declare void a judgment of the Court equally operates upon the constituent authority. It is urged that the constituent authority can only enact a law in general terms, even though it be a Constitutional law. The constituent authority may also, if it so deems proper change the law which is the basis of a decision and make such change with retrospective effect, but it cannot, according to the learned Counsel, declare void the judgment of the Court. Declaration of voidness of a judgment, it is stated, is a judicial act and cannot be taken over by the constituent authority. Although legislatures or the constituent authority can make laws including those for creation of courts, they cannot, according to the submission, exercise judicial functions by assuming the powers of a super court in the same way as the Courts cannot act as a super legislature. It is in my opinion, not necessary to dilate upon this aspect and express a final opinion upon the rival contentions, because of the view I am taking of part (iii) of Clause (4).

195. We may now come to part (iii) of Clause (4). By part (iii) it is declared that the election of the appellant shall continue to be valid in all respects. Such a declaration would not follow from part (i) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as mentioned earlier, in effect represented the consequences flowing from part (i). The election to the Lok Sabha of the appellant, who was the Prime Minister, was challenged on the ground that she or her election agents had been guilty of some malpractices. The declaration that her election was to be valid in all respects necessarily involved the process of going into the grounds on which her election had been assailed and holding those grounds to be either factually incorrect or to be of such a nature as in law did not warrant the declaration of her election to be void. The case of the appellant is that some of the grounds mentioned against her were factually incorrect and in respect of those grounds the findings of the High Court is against the respondent and in her favour. In respect of some other grounds, except in one or two matters there is not much divergence between the appellant and the respondent on the question of facts. The point of controversy between the parties mainly is that, according to the respondent, those facts constituted corrupt practice as defined in Section 123 of the RP Act, while according to the appellant those facts did not constitute corrupt practice. In any case, according to the appellant, in view of the amendment made in the RP Act by amending Acts 58 of 1974 and 40 of 1975, these facts did not constitute corrupt practice. The declaration made in part (iii) of Clause (4) that the election of the appellant was to be valid in all respects was tantamount in the very nature of things to the repelling of the grounds advanced by the respondent to challenge the election of the appellant. Question therefore arises as to what, if any, was the law which was applied in repelling the grounds advanced by the respondent to challenge the election of the appellant. So far as the existing law relating to election disputes was concerned, part (i) of Clause (4) expressly stated that such a law would not apply to the petition filed by the respondent to challenge the election of the appellant. This means that the provisions of the Representation of the People Act were not to apply to the petition filed by the respondent against the appellant. This also means that the amending Acts 58 of 1974 and 40 of 1975 were not to apply to the dispute relating to election of the appellant.

196. The dispute relating to the election of the appellant is also not to be governed by law which is to be enacted under Clause (1) of Article 329A. Such a law would apply only to future elections. The result is that so far as the dispute relating to the election of the appellant is concerned, a legal vacuum came into existence. It was open to the constituent authority to fill that vacuum by prescribing a law which was to govern the dispute arising out of the petition filed by the respondent to challenge the election of the appellant. The constituent authority, however, did not to do so and straightway proceeded to declare the election of the appellant to be valid. There is nothing in Clause (4) to indicate that the constituent authority applied any law in declaring the election of the appellant to be valid and if so, what was that law.

197. I am unable to accede to the argument that the constituent authority kept in view the provisions of the RP Act as amended by Acts 58 of 1974 and 40 of 1975 and their impact on the challenge to the election of the appellant in declaring the election of the appellant to be valid. The difficulty in accepting this argument is that in part (i) of Clause (4) the constituent authority expressly stated that the previous law, namely, the RP Act as amended in so far as it related to election petitions and matters connected therewith was not to apply so far as the challenge to the election of the appellant was concerned. It is also difficult to agree that the constituent authority took into account some other unspecified law or norm in declaring the election of the appellant to be valid. As mentioned earlier, there is nothing in Clause (4) to indicate that the constituent authority took into account some other law or norm and if so, what that law or norm was. The position which thus emerges is that according to Clause (4) no law was to apply for adjudicating upon the challenge to the election of the appellant and the same was in terms of part (iii) to be valid in all respects. The question with which we are concerned is whether the provisions of Clause (4) of the Article 329A by which the constituent authority in effect prescribed that no election law was to govern the challenge to the election of the appellant and that the same in any case was to be valid in all respects is a permissible piece of Constitutional amendment or whether it is void on the ground that it affects the basic structure of the Constitution.

198. This Court in the case of Kesavananda Bharati

held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion. Free and fail elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, sometimes the result of an election is materially affected because of the improper rejection of ballot papers. likewise, the result of an election may be materially affected on account of the improper rejection of a nomination paper. Disputes, therefore, arise with regard to the validity of elections. For the resolving of those disputes, the different democratic countries of the world have made provisions prescribing the law and the forum for the resolving of those disputes. To give a few examples, we may refer to the United Kingdom where a parliamentary election petition is tried by two judges on the rota for the trial of parliamentary election petitions in accordance with the Representation of the People Act, 1949. Section 5 of Article 1 of the U S Constitution provides that each House (Senate and the House of Representatives) shall be judge of the elections, returns and qualifications of its own members. Section 47 of the Australian Constitution provides that until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. Article 55 of the Japanese Constitution states that each House shall judge disputes related to qualifications of its members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present. Article 46 of the Iceland Constitution provides that the All thing itself decides whether its members are legally elected and whether a member is disqualified. Article 64 of the Norwegian Constitution states that the representatives elected shall be furnished with certificates, the validity of which shall be submitted to the judgment of the Storthing. Article 59 of the French Constitution provides that the Constitutional Council shall rule, in the case of disagreement, on the regularity of the election of deputies and senatOrs. Article 41 of the German Federal Republic Constitution states that the scrutiny of elections shall be the responsibility of the Bundestag. It shall also decide whether a deputy has lost his seat in the Bundestag. Against the decision of the Bundestag an appeal shall lie to the Federal Constitutional Court. Details shall be regulated by a federal law. According to Article 66 of the Italian Constitution, each Chamber decides as to the validity of the admission of its own Members and as to cases subsequently arising concerning ineligibility and incompatibility. In Turkey Article 75 provides inter alia that it shall be the function of Supreme Election Board to review and pass final judgment on all irregularities, complaints and objections regarding election matters during and after elections. The function and powers of the Supreme Election Board shall be regulated by law. Article 53 of the Malaysian Constitution provides that if any question arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final.

199. Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity of the election of a candidate is challenged on some grounds, the said election can be declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds. If the said forum finds that the grounds advanced to challenge the election are not well-founded or are not sufficient to invalidate the election in accordance with the prescribed law or dismisses the petition to challenge the election on some other ground, in such an event it can be said that the election of the returned candidate is valid.

200. Besides other things, election laws lay down a code of conduct in election matters and prescribe, what may be called, rules of electoral morality. Election laws also contain a provision for resolving disputes and determination of controversies which must inevitably arise in election matters as they arise in other spheres of human activity. The object of such a provision is to enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in election matters. It is manifest that but for such a provision, there would be no sanction for the above code of conduct and rules of electoral morality. It is also plain that nothing would bring the code of conduct into greater contempt and make a greater mockery of it than the absence of a provision to punish its violation. The position would become all the more glaring that even though a provision exists on the statute book for punishing violation of the code of conduct in election matters, a particular election is made immune and granted exemption from the operation of such a provision.

201. The vice of Clause (4) of Article 329A is not merely that it makes the previous law contained in the RP Act as amended by Act 58 of 1974 and 40 of 1975 inapplicable to the challenge to the election of the appellant it also makes no other election law applicable for resolving that dispute. The further vice from which the aid clause suffers is that it not merely livests the previous authority, namely, the High Court of its jurisdiction to decide the dispute relating to the election of the appellant, it confers no jurisdiction on some other authority to decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon the grounds advanced by the respondent to challenge the election of the appellant, the constituent authority has declared the election of the appellant to be valid.

202. To confer an absolute validity upon the election of one particular candidate and to prescribe that the validity of that election shall not be questioned before any forum or under any law would necessarily have the effect of saying that howsoever gross may be the improprieties which might have vitiated that election, howsoever flagrant may be the malpractices which might have been committed on behalf of the returned candidate during the course of the election and howsoever foul and violative of the principles of free and fair elections may be the means which might have been employed for securing success in that election, the said election would be none-the-less valid and it would not be permissible to complain of those improprieties malpractices and unfair means before any forum or under any law with a view to assail the validity of that election. Not much argument is needed to show that any provision which brings about that result is subversive of the principle of free and fair election in a democracy. The fact that the candidate concerned is the Prime Minister of the country or the Speaker of the lower House of Parliament would, if anything, add force to the above conclusion because both these offices represent the acme of the democratic process in a country. That in fact the elections of the incumbents of the two offices were not vitiated by any impropriety, malpractice or unfair means is not relevant or germane to the question with which we are concerned, namely, as to what is the effect of Clause (4) of Article 329A.

203. The vice of declaration contained in part (iii) of Clause (4) regarding the validity of the election of the appellant is aggravated by the fact that such a declaration is made after the High Court which was then seized of jurisdiction had found substance in some of the grounds advanced by the respondent and had consequently declared the election of the appellant to be void. To put a stamp of validity on the election of a candidate by saying that the challenge to such an election would not be governed by any election law and that the said election in any case would be valid and immune from any challenge runs counter to accepted norms of free and fair elections in all democratic countries. In the case of Marbury v. Madison (1803) 1 Cranch 137 at p. 163 Marshall C.J. said that "the government of the United States has been emphatically termed a government of laws and not of men". In United States v. Lee (1883) 106 US 196 at p. 220 Samuel Miller J. observed that "no man is so high that he is above the law....All officers are creatures of the law and are bound to obey it". Although the above observations were made in the context of the US Constitution, they, in my opinion, hold equally good in the context of our Constitution.

204. It has been argued on behalf of the appellant that the grounds on account of which the election of the appellant had been held to be void by the High Court were of a technical nature. I need not express any opinion about this aspect of the matter at this stage but, assuming it to be so, I find that Clause (4) of Article 329A is so worded that however serious may be the malpractices vitiating the election of the Speaker or the Prime Minister, the effect of Clause (4) is that the said election would have to be treated as valid. I cannot accede to the submission that in construing Clause (4) we should take into account the facts of the appellant's case. This is contrary to all accepted norms of construction. If a Clause of a Constitution or statutory provision is widely worded, the width of its ambit cannot be circumscribed by taking into account the facts of an individual case to which it applies. As already mentioned, Clause (4) deals with the past election not merely of the Prime Minister but also of the Speaker. So far as the election of the Speaker is concerned, we do not know as to whether the same was ever challenged and, if so, on what grounds, and whether such a dispute is still pending.

205. Another argument advanced in support of the validity of the amendment is that we should take it that the constituent authority constituted itself to be the forum for deciding the dispute relation to the validity of the election of the appellant, and after considering the facts of the case, declared the election of the appellant to be valid. There is, however, nothing before us as to indicate that the constituent authority went into the material which had been adduced before the High Court relating to the validity of the election of the appellant and after considering that material held the election of the appellant to be valid. Indeed, the statement of Objects and Reasons appended to the Constitution (Thirty-ninth Amendment) Bill makes no mention of this thing. In any case, the vice of Clause (4) would still lie in the fact that the election of the appellant was declared to be valid on the basis that it was not to be governed by any law for settlement of election disputes. Although the provisions of a Constitutional amendment should be construed in a fair and liberal spirit, such liberal spirit should not be carried by the court to the extent of discovering the application of a dormant and latent law in the declaration of the validity of an election even though there is not even a remote indication of such a law in the impugned provision. Rule of law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such decision is the antithesis of a decision taken in accordance with the rule of law.

206. The matter can also be looked at from another angle. The effect of impugned Clause (4) is to take away both the right and the remedy to challenge the election of the appellant. Such extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is incompatible with the process of free and fair elections. Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void. To extinguish the right and the remedy to challenge the validity of an election would necessarily be tantamount to laying down that even) if the election of a candidate is vidated by the fact that it was secured by flagrant violation of the principles of free and fair election, the same would still enjoy immunity from challenge and would be nonetheless valid. Clause (4) of Article 329A can, therefore, be held to strike at the basis of free and fair 'elections,

In the case of election meetings, all expenditure on police, setting up of barricades and taking lighting arrangements will be borne by the State Government while expenditure on the public address system and any decorative arrangements will be the responsibility of the political party concerned. (The expenditure on all these items, may in the first instance be borne by the State Government and then recovered from the political parties concerned). In regard to the rostrum only 25 per cent of the cost of the rostrum or Rs. 2500.00 whichever is less, shall be contributed by the party as the rostrum has to be of certain specifications because of security considerations.

Assuming that the finding of fact recorded by the High Court in this respect is correct, the appellant can still be not guilty of the commission of corrupt practice under Section 123(7) of the RP Act in view of the new proviso which has been inserted at the end of Clause (7) of Section 123 and which reads as under:

Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his 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." The above proviso has also a direct bearing on the allegation of the respondent that the appellant committed corrupt practice under Section 123(7) of the RP Act inasmuch as she or her election agent procured the assistance of members of armed forces of the Union for furtherance of her election prospects because of the fact that the members of the armed forces arranged planes and helicopters of the Air Force for her flights to enable her to address meetings in her constituency.

223. It has been argued by Mr. Shanti Bhushan that the words "in the discharge or purported discharge of his official duty" in the above mentioned proviso have reference only to statutory duty and not to other duty performance of which takes place in pursuance of administrative instructions. I find it difficult to accede to the above submission as there is nothing in the above proviso to confine the words "official, duty" to duty imposed by statute. Official duty would include not merely duties imposed by statutes but also, those which have to be carried out in pursuance of administrative instructions.

224. Mr. Shanti Bhushan during the course of arguments made it plain that apart from his submission with regard to the validity of Act 40 of 1975, his objection relating to the applicability of Act 40 of 1975 was confined to two matters, namely, the connotation of the word "candidate" and the meaning to be attached to official duty. Both these objections have been found by me to be not tenable. I would, therefore, hold that subject to the question as to whetherin the provisions of Act 40 of 1975 are) valid, the grounds on which the High; Court has declared the election of the appellant to be void no longer hold, good for declaring the said election toI be void.

225. We may also before dealing with the validity of Act 40 of l975 refer to one other change brought about by that Act which has a bearing upon the present case. It was the case of the respondent that the appellant and her election agent made extensive appeals to the religious symbol of cow and calf and thereby committed corrupt practice under Section 123(3) of the RP Act. Corrupt practice has been defined in that provision as under:

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate." It is the common case of the parties that the symbol of cow and calf was allotted to the Congress party by the Election Commission. The learned Counsel for the respondent stated during the course of arguments in the High Court that he confined his case only to the use of the symbol of cow and calf. The learned Counsel gave up that part of the case of the respondent wherein it had been alleged that appeals were made to the religious symbol of cow and calf by the appellant. The following proviso has now been inserted in Clause (3) of Section 123 by Section 8 of Act 40 of 1975:

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

It is, therefore, apparent in view of the above proviso that the symbol of cow and calf which was allotted to the appellant shall not be deemed to be a religious symbol or a national symbol for the purpose of Section 123(3) of the RP Act. The appellant as such cannot be deemed to have committed a corrupt practice under Section 123(2) of the RP Act by use of the symbol of cow and calf.

226. In assailing the validity of Act 40 of 1975 Mr. Shanti Bhushan has referred to Section 10 of that Act, according to which the amendments made by Sections 6, 7 and 8 of the Act in the RP Act shall have retrospective operation, so as to apply to any election held before the commencement of the Act in respect of which an election petition is pending or in respect of which appeal from any order of the High Court is pending immediately before the commencement of Act 40 of 1975. It is urged that a change in the election law with retrospective effect strikes at the principle of free and fair elections. Retrospective operation of the amending Act, according to the learned Counsel, has the effect of condoning what was at the time it was committed a corrupt practice.

227. I have given the matter my earnest consideration, and am of the opinion that there is no substance in the above contention. A legislature has, except in a matter for which there is prohibition like the one contained in Article 20(1) of the Constitution, the power to make laws which are prospective in operation as well as laws which have retrospective operation. There is no limitation on the power of the legislature in this respect. Essentially it is a matter relating to the capacity and competence of the legislature. Although most of the laws made fey the legislature have a prospective operation, occasions arise quite often when necessity is felt of giving retrospective effect to a law. This holds good both in respect of a principal Act as well as in respect of an amending Act. If the provisions of an Act passed by the legislature are not violative of the provisions of the Constitution, those provisions shall have to be given effect to and the fact that : the operation of the Act is prospective or retrospective would make no difference. It is also permissible to amend a law which is basis of the decision of a court with retrospective effect. and rely upon the provisions of the amended law in appeal against the above decision of the court. The court of appeal in such an event gives full effect to the amended law even though such amendment has been made after the decision of the original court. The one field in which it is not permissible to make a law with retrospective effect, is contained its Clause (1) of Article 20, according to which no person shall be convicted of assay offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Apart from the field in which there is a constitutional prohibition for giving retrospective effect to a law, power of making amendment in law with retrospective effect has now become a part of normal legislative process. Question then arises as to whether in spite of the general competence of the legislature to make a law with retrospective effect, is the legislature rendered incompetent to make a law with retrospective effect in election matters? The answer to this question, in my opinion, should plainly be in the negative. Election laws are a part of the normal legislative process and what is permitted in the matter of ordinary legislation would also be permissible in the matter of legislation relating to elections unless there be some provision in the Constitution which forbids such a course. We have not been referred to any provision in the Constitution which has the effect of creating a bar in the way of the legislature making a law relating to elections with retrospective operation. If a party seeks to carve out an exception to the normal rule, it can do so only on the basis of some cogent ground. No such ground has been brought to our notice. The matter indeed is not res integra because there have been two cases wherein this Court has upheld the validity of the law making amendments in election laws with retrospective effect,

228. The first such case was State of Orissa v. Bhupendra Kumar Bose . It arose out of elections to the Cuttack

Municipality held in December 1957 to March 1958 as a result of which 27 appellants were declared elected as CouncillOrs. The respondent, who was defeated- at the elections, filed a writ petition -before the High Court challenging the elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Municipalities Act, 1950, as the age qualification had been published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed. The High Court consequently set aside the elections. The State took the view that the judgment affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared in respect of various municipalities. The respondent thereupon filed a writ petition before the High Court contending that the Ordinance was unConstitutional. The High Court struck down the Ordinance. One of the grounds which weighed with the High Court in striking down the Ordinance was that it contravened Article 14 of the Constitution. The State and the Councillors came up in appeal to this Court. It was held by this Court that the Ordinance was valid and that it successfully lured the invalidity of the electoral rolls and of elections to the Cuttack Municipality. The Ordinance was further held not to offend Article 14 of the Constitution as its object was not only to save the elections to the Cuttack Municipality but also to other municipalities whose validity might be challenged on similar grounds. The Ordinance, in the opinion of the Court, did not single out the respondent for discriminatory treatment. Gajendragadkar, J. (as he then was) speaking for the Constitution Bench of this Court observed:

The Cuttack Municipal Elections had been set aside by the High Court and if the Governor thought that in the public interest, having regard to the factors enumerated in the preamble to the Ordinance, it was necessary to validate the said elections, it would not necessarily follow that the Ordinance suffers from the vice of contravening Article 14." It was further observed:

Therefore, if the infirmity in the electoral rolls on which the decision of the High Court in the earlier writ petition was based, had not been applicable to the electoral rolls in regard to other Municipalities in the State of Orissa, then it may have been open to the Governor to issue an Ordinance only in respect of the Cuttack Municipal Elections, and if, on account of special circumstances or reasons applicable to the Cuttack Municipal Elections, a few was passed in respect of the raid elections alone, It could not have been challenged as unConstitutional under Article 14. Similarly, if Mr. Bose was the only litigant affected by the decision and as such formed a class by himself, it would have been open to the Legislature to make a law only in respect of his case. But as we have already pointed out, the Ordinance does not purport to limit its operation only to the Cuttack Municipality, it purports to validate the Cuttack Municipal Elections and the electoral rolls in respect of other Municipalities as well. Therefore, we are satisfied that the High Court was in error in coming to the conclusion that Section 4 contravenes Article 14 of the Constitution.

229. In Kanta Kathuria v. Manak Chand Surana the

dispute related to the election of the appellant to the Rajasthan Legislative Assembly. The appellant in that case had been appointed as a Special Government Pleader to represent the State of Rajasthan in an arbitration case. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election of the appellant was challenged inter alia on the ground that the appellant held an office of profit within the meaning of Article 191(1) of the Constitution. The High Court set aside the election of the appellant. The appellant then came up in appeal to this Court. During the pendency of the appeal, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly. The Act was made retrospective and removed the appellant's disqualification retrospectively. On the question as to whether the appellant was holding an office of profit and hence was disqualified, Sikri, Ray and Reddy, JJ. held that the appellant was not holding an office of profit. Hidayatullah, C.J. and Mitter, J., however, held that the High Court was right in holding that the appellant held an office of profit. All the five Judges constituting the Constitution Bench were, however, unanimous on the point that the Act of 1969 had removed the disqualification of the appellant retrospectively. Hidayatullah, C.J. speaking for himself and Mitter, J. observed:

It is also well recognised that Parliament and Legislatures of the States can make their laws operate retrospectively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively. This is not one of them.

This position being firmly grounded we have to look for limitations, if any, in the Constitution. Article 191 (which has been quoted earlier) itself recognises the power of the Legislature of the Slate to declare by law that the holder of an office shall not be disqualified for being chosen as a member. The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. There is nothing in the words of the article to indicate that this declaration cannot be made with retrospective effect.

The bill stands in the name of the Congress Committee and was presumably paid by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty is that this jeep was used also for the general Congress propaganda in other constituencies. As we stated, the jeep remained in Chalet and at Mubarakpur. No doubt Chalet is the home town of the returned candidate and his office was situated at Mubarakpur but that does not indicate that the jeep was used exclusively on his account. The petrol chart shows that petrol was bought at several pumps, both inside the constituency and outside. This shows, as does the evidence, that the jeep was used not only in this constituency but also in the other constituencies. If this be true, the, it is almost impossible on the evidence as it exists in this case to decide how much of the use went for the benefit of the returned candidate and how much for the use of candidates in the other constituencies also put up by the Congress Committee. In this situation it is difficult to say that the whole of the benefit of the jeep went to the returned candidate and once we hold that the entire benefit did not go to him, we are not in a position to allocate the expenses between him and the other candidates in the other constituencies.

244. Reference has also been made during the course of arguments by Mr. Shanti Bhushan to some entries in a register of the Congress Committee. The High Court declined to place any reliance on those entries astnose entries had not been proved. I see no cogent ground to take a different view. Our attention has been invited by Mr. Shanti Bhushan to a report in issue dated January 22, 1971 of Swantantra Bharat wherein there was a reference to the Personal Secretary of the Prime Minister having reached Rae Bareli with a caravan of 70 motor vehicles. No reliance can be placed upon that report as the correspondent who sent that report was sot examined as a witness.

245. The other difficulty winch I find In accepting the submission of Mr. Shanti Bhushan in respect of 23 vehicles is that there is no evidence to show that any payment 'was made for the use of the above mentioned vehicles. There is also nothing to show that those vehicles were engaged on hire. As mentioned earlier, the owners and drivers of those vehicles were not examined as witnesses. I, therefore, find no sufficient ground to interfere with the finding of the High Court in respect of the above mentioned 23 vehicles.

246. Mr. Shanti Bhushan has next as-sailed the finding of the High Court in so far as it has held that the respondent has failed to prove that the appellant incurred an expense of Rs. 6,600 on workers engaged for the purposes of election propaganda. I, however, find no infirmity in the finding of the High Court in this respect as there is no cogent evidence whatsoever that any expense was incurred for engaging workers for the election work of the appellant. The case of the appellant is that her workers did the work voluntarily and without receipt of any remuneration.

247. Apart from challenging the findings of the High Court in respect of 23 vehicles and the alleged payment to workers, Mr. Shanti Bhushan has also referred to some other circumstances with a view to show that ,the election expenses of the appellant exceeded the prescribed amount of Rs. 35,000. It has been pointed out that a cheque for Rs. 70,000 was sent by the Provincial Congress Committee to Dal Bahadur Singh, President of the District Congress Committee Rae Bareli, and the same was credited in Dal Bahadur Singh's account after deducting of the bank charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount Rs. 40,000 and Rs. 25,000 on March 4 and 6, 1971 respectively near about the days of polling. It is urged that the said amount must have been spent for the purpose of the elections. There was no reference to the said amount of Rs. 70,000 in the petition. There is also no reference to the amount of Rs. 70,000 in the judgment of the High Court or in the grounds of appeal. As such, I am of the view that the respondent should not be allowed to set up a case against the appellant on the basis of the bank entries in the account of Dal Bahadur Singh. Reference has further been made by Mr. Shanti Bhushan to the expenses which were alleged to have been incurred on the telephone charges and the meetings addressed by Yashpal Kapur. The High Court rejected the submission in this respect on behalf of the respondent in the following words:

Learned Counsel for the petitioner urged that from the evidence on record, it transpires that expenditure was also incurred on the telephone connection and telephone charges, on the meetings addressed by Sri Yashpal Kapur within the Constituency during the period of election, on the election material viz. pamphlets, posters, etc. and on the lighting arrangements made for some meetings addressed by the respondent No. 1. According to learned Counsel, these expenses are also liable to be added to the election expenses of the respondent No. 1. None of these expenses were, however, pleaded in the petition. In fact, till the commencement of the arguments in the case, the respondent No. 1 could not even anticipate that the petitioner shall rely on these expenses for the purpose of his case. It will, therefore, be prejudicial to the interest of respondent No. 1 if the aforesaid expenses are taken in consideration. The submission made by learned Counsel for the petitioner is accordingly negatived." I am in full agreement with the above observations of the High Court and find no cogent ground to take a different view.

248. In may be stated that In view of the new explanation added to Section 77 of the RP Act by Act 40 of 1975, the amount of Rs. 12,000 which represented 75 per cent of the expenditure incurred on the construction of 10 rostrums home by the Government, cannot be included in the total election expenses of the appellant. The High Court was also inclined to hold that the said amount of Rs. 12,000 could not he included in the appellant's expenses. The High Court however, included the total amount of Rs. 16,000 in the election expenses of the appellant upon the assumption that the appellant had not disavowed that expenditure. Be that as it may, the fact remains that the High Court has found on issue No. 9 that the total expenses incurred by the appellant on her election have not been shown to exceed the prescribed limit. I find no cogent reason to interfere with that finding.

249. I also agree with the High Court that as the election expenses of the appellant have not been shown to exceed the prescribed limit of Rs. 35,000, the question of invoking and going into the validity of Act 58 of 1974 does not arise. Nor is it necessary to express an opinion about the view taken in Kanwarlal v. Amarnath Chawla in

view of the fact that even after applying the rule laid down in that case, the total election expense of the appellant has not been shown to exceed the prescribed limit.

250. So far as the finding of the High Court on issue No. 6 regarding the use of the symbol of cow and calf is concerned, the matter, as already discussed earlier, is now covered by the amendment made in Section 123(1) of the RP Act by Section 8 of Act 40 of 1975.

251. There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution. It was also held that a Constitutional amendment under Article 368 does not constitute "law" as mentioned in Article 13. I also did not agree with the view taken in the case of Golaknath that there was a limitation on the power of Parliament to amend the provisions of Part III of the Constitution so as to abridge or take away the fundamental rights. I thereafter dealt with the scope of the power of amendment under Article 368 and the connotation of the word "amendment" and said in this context :

I am further of the opinion that amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated, but only changes have to be made in it. The word 'amendment' postulates that the old Constitution survives without loss of identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed and done away with, it is retained though in the amended form. What the is meant by the retention of the old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere retention of some provisions of the old Constitution even though the basic structure or framework of the Constitution has been destroyed would not amount to the retention of the old Constitution. Although it is permissible under the power of amendment to effect changes, however important, and to adopt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. the words 'amendment of the Constitution' with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provides sanction for what may perhaps be called its lawful harakiri. Such subversion or destruction cannot be described to be amendment of the Constitution as contemplated by Article 368.

It was further observed by me:

The word 'amendment' in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provision outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach, in my opinion, should hold good when we deal with amendment relating to fundamental rights contained in Part III of the Constitution. It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental rights and the scope and width of that power when it deals with provisions not concerned with fundamental rights.

It would appear from the above that no distinction was made by me so far as the ambit and scope of the power of amendment is concerned between a provision relating to fundamental rights and provisions dealing with matters other than fundamental rights. The limitation inherent in the word "amendment" according to which it is not permissible by amendment of the Constitution to change the basic structure of the Constitution was to operate equally on articles pertaining to fundamental rights as on other articles not pertaining to those rights. This was further made clear by the following observations on page 688:

Subject to the retention of the basic structure or framework of the Constitution. I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various article deluding those relating to fundamental rights.

Proposition (vii) of the summary of my conclusions on page 758 of the judgment also bears it out and the same reads as under:

(vii) The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles.

252. It has been stated by me on page 685 of the judgment (already reproduced above) that the secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. The above observations show that the secular character of the Constitution and the rights guaranteed by Article 15 pertain to the basic structure of the Constitution. The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution.

253. Before parting with this case I must acknowledge the assistance we received from the learned Counsel for the parties as also from learned Attorney General and Solicitor General in resolving the points of controversy. In spite of the political overtones, the case was argued forcefully yet without generating any heat and in an atmosphere of befitting calmness. It has been said by Holmes, J. that great cases like hard cases make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest, which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure (Northern Securities Co. v. U.S. ) (1903) 193 US 197 at pp. 400-1. It, therefore, became essential to rid the case of all the embellishments resulting from the political overtones and to bring it to a level which is strictly judicial, so that the various Constitutional and legal aspects of the matter may be examined in a dispassionate atmosphere. Learned Counsel for the parties made a significant contribution towards the attainment of this objective. It may not be inappropriate in the above context to reproduce what was said by one of us (Khanna, J.) in Kesavananda Bharati's case :

That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.

254. As a result of the above, I accept appeal No. 887 of 1975 filed by Shrimati Indira Nehru Gandhi, set aside the judgment of the High Court in so far as it has found the appellant guilty of corrupt practice under Section 123(7) of the RP Act and has declared her election to the Lok Sabha to be void. The order that the appellant shall accordingly stand disqualified for a period of six years as provided in Section 8-A would also consequently be set aside. The election petition filed by the respondent shall stand dismissed. Appeal No. 909 of 1975 filed by Shri Raj Narain is dismissed. Looking to all the circumstances, more particularly the fact that the election petition filed by the respondent is being dismissed because of changes made in law during the pendency of the appeal, the parties are directed to bear their own costs throughout.

K.K. Mathew, J.

255. In the election petition filed by the respondent in Civil Appeal No. 887 of 1975 (hereinafter referred to as 'respondent) seven charges of corrupt practice were made against the appellant therein (hereinafter called the 'appellant"). and it was prayed that the election of the appellant be set aside. The learned Judge who tried the petition found that two of the charges had been made out but that the rest of the charges were not substantiated. He set aside the election of the appellant with the result that the appellant incurred the disqualification for a period of six years as visualized in Section 8-A of the Representation of the People Act. 1951. It is against this judgment that Civil Appeal No. 887 of 1975 has been filed.

256. The respondent has filed a cross appeal (Civil Appeal No. 909 of 1975) challenging the findings of the High Court in respect of the other charges of corrupt practice.

257. During the pendency of these appeals, the Parliament passed the Election Laws (Amendment) Act, 1975 on 6-8-1975 by which certain amendments were made in the provisions of the Representation of the People Act, 1951, and the Indian Penal Code.

258. On 10-8-1975 the Parliament in the exercise of its constituent power passed the Constitution (Thirty-ninth Amendment) Act, 1975 (hereinafter referred to as the 'Amendment'). By the Amendment, Article 71 of the Constitution was substituted by a new Article and that Article provided by Clause (1) that, subject to the provisions of the Constitution, Parliament may, by law, regulate any matter relating to or connected with the election of a President or Vice-President, including the grounds on which such election may be questioned. By Clause (2) of the Article it was provided that all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by such authority or body in such manner as may be provided for by or under any law referred to in Clause (1). Clause (3) stated that the validity of any such law referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court 259. By Clause 4 of the amended Article 329-A was inserted reading as follows:

329-A. Special provision as to elections to Parliament in the case of Prime Minister and Speaker:

(1) subject to the provisions of Chapter II of Part V (except Sub-clause (e) of Clause (1) of Article 102), no election

(a) to either House of Parliament of a person who holds the office of the Prime Minister at the time of such election or is appointed as Prime Minister after such election;

(b) to the House of the People of a person who holds the office of a Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election:

shall be called in question except before such authority (not being any such authority as is referred to in Clause (b) of Article 329) or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned.

(2) The validity of any such law as is referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court.

(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in Clause (b) of Article 329 in respect of his election to either House of Parliament or as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in Clause (1).

(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act. 1975 before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4).

(6) The provisions of this Article shall have effect notwithstanding anything contained in this Constitution.

260. The respondent contended that Clause (4) of Article 329-A (hereinafter referred to as 'Clause (4)') is invalid for the reason that some of the basic structures of the Constitution have been damaged by its enactment.

261. The argument was that although the amending body could declare that the election of the appellant shall not be deemed to be void and the judgment of the High Court to be void on the basis that no law relating to election petition and matters connected therewith would apply to the election, yet the amending body could not have held the election to be valid as it did not ascertain the facts relating to the election and apply the relevant law to them. Counsel submitted that by its very nature, an election dispute in a democratic system of Government raises questions which can be decided only by the exercise of judicial power, that by retrospectively rendering the forum for investigation into the complaints regarding the validity of the election of the appellant coram non judice, and by the amending body judging its validity without ascertaining the facts and applying the relevant law, the Amendment has fundamentally damaged an essential feature of the democratic structure of the Constitution, namely, free and fair election.

262. Counsel also submitted that equality and rule of law are essential features of democracy; that Clause (4) by dispensing with the application of the law relating to election petition and matters connected therewith to the appellant, made an unreasonable classification among persons. similarly situated with reference to the purpose of the law.

263. The further submission was that separation of powers is a basic structure of the Constitution and that if it be supposed that the amending body ascertained the facts regarding the election of the appellant and applied the relevant law, the exercise of that power by the amending body would offend the doctrine of separation of powers and that, at any rate, this process would not result in an amendment of the Constitution by enacting a law, but only in the passing of a judgment or sentence which can never be characterized as a law, let alone a law relating to the Constitution of India.

264. In His Holiness Kesavanada Bharati Sripadagalvaru v. State of Kerala (hereinafter referred to as 'Bharati's case'), a majority of seven Judges held that the power conferred under Article 368 of the Constitution was not absolute. They took the view that by an amendment, the basic structure of the Constitution cannot be damaged or destroyed. And, as to what are the basic structures of the Constitution, illustrations have been given by each of these Judges. They include supremacy of the Constitution democratic republication form of Government, secular character of the Constitution, separation of powers among the legislature, executive and judiciary, the federal character of the Constitution, Rule of Law, equality of status and of opportunity; justice, social, economic and political; unity and integrity of the nation and the dignity of the individual secured by the various provisions of the Constitution. There was consensus among these Judges that democracy is a basic structure of the Constitution. I proceed on the assumption that the law as laid down by the majority in that case should govern the decision here, although 1 did not share the view of the majority.

265. Therefore, if by Clause (4), any essential features of the democratic republication structure of our polity as visualized by the Constitution has been damaged or destroyed, the clause would be ultra vires the Constitution.

266. One way of looking at the first part of Clause (4) is that the amending body has, with retrospective effect, repealed the law relating to election petition in respect of the persons specified in Clause (1) and hence the judgment rendered on the basis of the previous law relating to election petition became automatically void, and the amending body was merely stating the consequence of the retrospective repeal of the law and therefore the declaration that the judgment was void was not an exercise of judicial function. On the other hand, it might be possible to view the first part of Clause (4) as an exercise of judicial power for the reason that, even assuming that by virtue of the retrospective repeal of the law relating to election petition, there was no jurisdiction in the High Court to entertain or try the election petition and pass the judgment, a repeal simpliciter did not render the judgment ipso facto void and, therefore, in making the declaration that the judgment was void, the amending body was performing a function which has traditionally been in the province of court.

267. Be that as it may, I feel no doubt that the amending body, when it declared the election of the appellant to be valid, had to ascertain the adjudicative facts "Adjudicative facts are facts about the parties or their activities, business and properties usually answering the question of who did what, where when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law, policy and discretion.

"Facts pertaining to the parties and their activities that is, adjudicative facts, are intrinsically the kind of the facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavourable to them, that is, without providing the parties an opportunity for trial." (see K.C. Davis : "The Requirement of a Trial-type Hearing" 70 Harv L. Rev. 193 at 191) and apply the relevant norm for adjudging its validity. If, however, the amending body did not ascertain the facts relating to the election and apply the relevant norm, the declaration of the validity of the election was a flat of a suigeneris character of the amending body.

268. The concept of democracy as visualized by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite (see N.P. Ponnuswami v. Returning Officer, Namakkal Constituency .

269. Article 329(b) envisages the challenge to an election by a petition to be presented to such authority as the Parliament may, by law prescribe. A law relating to election should contain the requisite qualification for candidates, the method of voting, definition of corrupt practices by the candidates and their election agents, the forum for adjudication of election disputes and other cognate matters. It is on the basis of this law that the question whether there has been a valid election has to be determined by the authority to which the petition is presented. And, when a dispute is raised as regards the validity of the election of a particular candidate the authority entrusted with the task of resolving the dispute must necessarily exercise a judicial function, for the process consists of ascertaining the facts relating to the election and applying the law to the facts so ascertained. In other words, it is obvious that a power must be lodged somewhere to judge the validity of the election, for, otherwise, there would be no certainty as to who were legitimately chosen as members, and any intruder or usurper might claim a seat and thus trample upon the privileges and liberties of the people. Indeed, elections would become under such circumstances, a mockery. In whichever authority the power is lodged, the nature of the function is such that it requires a judicial approach. It cannot be resolved on considerations of political expediency.

270. It was contended for the appellant that, in England, it was the House of Commons which originally decided election disputes concerning its members, that it was only in 1770 that the function was delegated to committees and, therefore, Parliament is the proper forum for deciding election disputes of its members as it is one of its privileges. I think, at the time our Constitution was framed, the decision of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country.

271. Before the year 1770, controverted elections were tried and determined by the whole House of Commons as mere party questions upon which the strength of contending factions might be tested "In order to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law, which, though composed of its own members, should be appointed so as to secure impartiality and the administration of justice according to the laws of the land under the sanction of oaths". The principle of the Grenvile Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of election petitions. And, at present, by Part III of the Representation of the People Act, 1949, the trial of controverted elections is confided to Judges selected from the judiciary in the appropriate part of the United Kingdom. Provision is made in each case for constituting a rota from whom these Judges are selected. The House has no cognizance of these proceedings until their determination, when the Judges certify their determination. The Judges are to make a report in any case where a charge has been made in the petition of corrupt and illegal practice having been committed at an election; and they may also make a special report on any matter arising which they think should be submitted to the House. See Erskine May's Parliamentary Practice, 18th edition (1971), pp. 29-31.

272. Article 1, Section 5(1) of the Constitution of the United States of America provides that each House shall be the Judge of the elections, returns and qualifications of its own members.

273. In whichever body or authority, the jurisdiction is vested, the exercise of the jurisdiction must be judicial in character. This Court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Article 329(b) (see Durga Shankar Mehta v. Thakur Rathuraj Singh .

274. In Barry v. Unites States Ex. Rel. Cunningham (1928) 73 Law Ed 867, it was held that in exercising the power to judge of the election returns and qualifications of members, the senate acts as a judicial tribunal.

275. It might be that if the adjudication of election disputes in respect of its members had been vested in each of the Houses of Parliament by the Constitution, the decision of the House would have been final. That would have been on the basis of the doctrine of the political question, namely, that the function has been exclusively committed textually to another agency, I am aware that the doctrine of political question has no hospitable quarter in this Court since the decision in Madhav Rao Scindia v. Union of India . But I venture to think that the doctrine alone can explain why the courts abstain from interfering with a verdict on an impeachment of the President for violation of the Constitution, a function essentially judicial. See Wechsler : Toward Neutral Principles of Constitutional Law, 73 Harv L Rev 1, at pp. 7-9

276. An election dispute has a public aspect in that it is concerned more with the right of a. constituency to be represented by a particular candidate. But it does not follow from the public character of the controversy that there is no list between the parties to the election contest, and that the lis can be resolved otherwise than by ascertaining the facts relating to the election, and applying the relevant law:

A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. This is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of some subject to its power. Justice Holmes in Pretis v. Atlantic Coast Line Co. (1908) 211 US 210 at p. 226.

277. The Privy Council had occasion to consider this question in United Engineering Workers' Union v. Devanayagam 1968 AC 356. The judgment of the majority was delivered by Lord Dilhorne, Lord Guest and Lord Devlin dissented. The question in the case was whether the President of a labour tribunal in Ceylon was the holder of a judicial office. If so, as the man in question had not been appointed in the way the Constitution of Ceylon required for appointments of judicial officers, whether the tribunal was without jurisdiction. It is clear from the judgment of their Lordships of the minority that judicial power is the exercise of a power on the basis of pre-existing law. At pp. 384-385, their Loreships said:

Another characteristic of the judicial power is that it is concerned with existing rights, that is, those which the parties actually have at the inception of the suit and not those which it may be thought they ought to have; it is concerned with the past and the present and not with the future.

278. According to the historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes binding on all persons over whom the legislature exercises legislative power; the judicature applies already existing law in the resolution of disputes between particular parties and Judges may not deviate from this duty. This view of the distinction between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompromisingly in describing functions as legislative or judicial. Thus, De Lolme said that courts of equity as then existing in England had a legislative function. They are, he said, a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature have as yet found it convenient or practicable to establish any. See the Constitution of England, New Ed. (1800) p. 149. Though this would show that neither for logic nor in language has the boundary between legislation and adjudication ever been rigidly and clearly drawn, the distinction between the two is well established.

279. If, therefore, the decision of the amending body that the election of the appellant was valid was the result of the exercise of judicial power or of despotic discretion governed society by considerations of political expediency, the question is whether that decision, though couched in the form of an enactment, can be characterized as an amendment of the Constitution.

280. The constituent power is the power to frame a Constitution. The people of India, in the exercise of that power, framed the Constitution and it enacts the basic norms. By that instrument, the people conferred on the amending body the power to amend by way of addition, variation or repeal any of its provisions (Article 368). It is not necessary to go in detail into the question whether the power to amend is coextensive which the constituent power of the people to frame a Constitution. In Bharaii's case :

under the Indian Constitution, the original sovereign-the people-created, by the amending clause of the Constitution, a lesser sovereign, almost coextensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin,

the "pro-sovereign", the holder of the amending power under the Constitution.

281. I fully appreciate that 'sovereign', if conceived of as an omnipotent being, has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has theological and religious overtones. Neverthelss, as the practice has become inveterate it will only create confusion if any departure is made in this case from the practice. If it is made clear that sovereign is not a 'mortal God' and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequence.

282. " 'Legal sovereignty' is a capacity 'to determine the actions of persons in certain intended ways by means of a law....were the actions of those who exercise the authority, in those respects in which they do exercise it, are not subject to any exercise by other persons of the kind of authority which they are exercising.' "See W.J. Rees : "The Theory of Sovereignty Re-stated" in Mind. Vol. iix (1950) quoted at p. 68 of 'In Defense of Sovereignty', ed. W.J. Stankiewicz.

283. The point to be kept in mind is that the amending body which exercises the constituent power of the legal sovereign, though limited by virtue of the decision in Bharati's case, can

express itself only by making laws.

284. The distinction between Constitutional law and ordinary law in a rigid Constitution like ours is that the validity of the Constitutional law cannot be challenged whereas that of ordinary law can be challenged on the touchstone of Constitution. But Constitutional law is as much law as ordinary law. A Constitution cannot consist of a string of isolated dooms. A judgment or sentence which is the result of the exercise of judicial power or of despotic discretion is not a law as it has not got the generality which is an essential characteristic of law. A despotic decision without ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment.

285. According to Blackstone, a law and a particular command are distinguished in the following manner : a law obliges generally the members of a given community, or a law obliges generally persons of a given class. A particular command obliges a single person or persons, whom it determines individually. Most of the laws established by political superiors are, therefore, general in a twofold manner : as enjoining or forbidding generally acts of kinds or sorts; and as binding the whole community, or, at least whole classes of its members. He then said : See Blackstone : Commentaries Vol. i, p. 44.

"Therefore, a particular act of the legislature to confiscate the goods of Titus," or to attaint him of high treason, does not enter into the idea of a municipal law : for the operation of this act is spent upon Titus only and has no relation to the community in general : it is rather a sentence than a law.

This passage was cited with approval by the Privy Council in Liyanage v. The Queen (1967) 1 AC 259 at p. 291 to show that the end product of the exercise of judicial power is a judgment or sentence and not a law.

286. St. Thomas Aquinas (after considering the views of Aristotle, St. Augustine and the opinions of jurists in pandects) has said that since the end of law is common good the law should be framed not for private benefit but for the common good of all citizens, see "The Treatise on Law" Gateway Ed (1970) p. 87.

287. Rousseau wrote : Contract Social, Bk II, Chap. VI.

When I say that the object of laws is always general. I mean that the law considers subjects collectively and actions as abstract; never a man as an individual, nor an action as particular neither is what the sovereign himself orders about a particular object a law but a decree; not an act of sovereignty, but of magistracy.

288. Austin draws an explicit distinction between 'laws' and 'particular commands'. Where a command, he says, obliges generally to acts or forbearances of a class, a command is a law of rule. But where it obliges to a specific act or forbearance, a command is occasional or particular. See Austin's Jurisprudence, 2nd Ed. Vol. I, p. 18.

289. Kelsen, after noting the distinction made by Austin has observed:

We can of course recognize as law only general norms. But there is no doubt that law does not consist of general norms only. Law includes individual norms, i.e. , norms which determine the behavior of one individual in one non-recurring situation and which therefore are valid only for one particular case and may be obeyed or applied only once.

According to him, such norms are valid law because they are parts of the legal order as a whole in exactly the same sense as those general norms on the basis of which they have' been created, he said that particular norms are the decisions of courts as far as their binding force is limited to the particular case at hand and that a Judge who orders a debtor A to return $ 1000 to his creditor B was passing a law : Kelsen : General Theory of Law and State, 1961, p. 38.

290. It may be noted that Kelsen made no distinction between law-creation and law-application. According to him, every act of applying the law involved the creation of norms. In his view, there was no distinction between creation and application of law, a view I find difficult to accept in the light of clear distinction made by the decisions of this Court between legislative and judicial functions.

291. A statute is a general rule. A resolution by the legislature that a town shall pay one hundred dollars to Timothy Coggan is not a statute, John Chipman Gray : Nature and Source of Law, p. 161.

292. The mere fact that an Act to indemnify A or an Act sanctioning a pension to the Speaker is passed by the House of Commons in England should not lead us to conclude that it is law. "The English Legislature was originally constituted not for legislative, but for financial purposes. Its primary function was, not to make laws, but to grant supplies. "Courtnancy Ilbert, Legislative Methods and Forms, (Oxford 1901), p. 208.

293. J. C. Carter has said that statute books contain vast masses of matter which, though in the form of laws, are not laws in the proper sense, that these consist in the making of provisions for the maintenance of public works of the State, for the building of asylums, hospitals, school buses, and a great variety of similar matters, and that this is but the record of actions of the State in relation to the business in which it is engaged. According to him, the State is a great public corporation which conducts a vast mass of business, and the written provisions for this, though in the form of laws are not essentially different from the minutes of ordinary corporate bodies recording their actions. Law, Its Origin, Growth and Function (New York and London, 1907), p. 116.

294. Walter Bagehot has said:

An immense mass, indeed of the legislation is not, in the proper language of jurisprudence legislation at all. A law is a general command applicable to many cases. The 'special acts' which crowd the statute book and weary parliamentary committees are applicable to one case only. They do not lay down rules according to which railways shall be made, but enact that such and such a rail way shall be made from this place to that place, and they have no bearing on any other transaction. "The English Constitution " (1967), World's Classics Edition (Oxford 1928), p. 119.

295. "When the authors of books on jurisprudence write about law, when professional lawyers talk about law, the kind of law about which they are mainly thinking is that which is found in Justinian's Institutes, or in the Nepoleonic Codes, or in the New Civil Code of the German Empire, that is to say, the legal rules which relate to contracts and torts, to property, to family relations and inheritance, or else to law of crimes as is to be found in a Penal Code." see Courtnancy Ilbert. Legislative Methods and Forms, (Oxford, 1901), p. 209.

296. John Locke was of the view that 'legislative authority is to act in a particular way...(and) those who wield this authority should make only general rules. They are to govern by promulgated established laws not to be varied in particular cases.' see the passage quoted at p. 129 of Hayek : Law. Legislation and Liberty.

297. Perhaps the most exhaustive treatment of the question of the necessity for generality in law is to be found in "Jurisprudence, Men and Ideas of the Law" by Patterson (see Chapter V). According to him, the generality of a law depends upon its being applicable to an indefinite number of human beings and that is the most significant aspect of law. He said that an ordinary judgment of a court is not law as a judgment applies only to a limited number of individuals, the parties to the case. He disagreed with Dr. Kelsen's statement that the judicial decision is an individual legal norm' as the expression 'individual' legal norm is a self contradiction.

298. To Friedmann the most essential element in the concept of law is a degree of generality:

The first desideratum of a system for subjecting human conduct to the governance of rules is an obvious one : there must be rules. This may be stated as a requirement of generality. Here as in so many other fields, John Austin's distinction was basically right, but too rigidly drawn.

Friedmann was of the view that a community which had no general prescription at all but only an infinite multitude of individual commands, would not be regarded as having a legal order. It would dissolve into millions of individual relationships.

Friedmann : "Legal Theory" 5th Ed., pp. 15-16. See also : Lon L. Fuller : "The Morality of Law" Pp. 46-49.

299. For the purpose of this case I accept as correct the statement of Blackstone already quoted and approved by the Privy Council in Liyanage v. The Queen (1967) 1 AC 259. I cannot regard the resolution of an election dispute by the amending body as law : It is either a judicial sentence or a legislative judgment like a Bill of Attainder.

300. It is no doubt true that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act of the legislature, as inflicts capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. The legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions. see 3 J. Story, Commentaries on the Constitution of the United States (Boston, 1833), Section 1338.

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.

99. 349-352.

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

proposition.

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.

22.

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:

ISSUES

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?

ADDITIONAL ISSUES

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.

439. There is no evidence whatsoever that Shri Kapur was constituted a sort of general de facto agent of the Prime Minister even before he became her election agent on 1-2-1971. Indeed, such a case, that Shri Kapur was constituted a de facto agent of the Prime Minister, and, if so, what was the scope of his authority, was not set up in the petition and was not put in issue. Therefore, there is no finding on it by the learned Judge. Could the Court then, without any proof of any specific request or solicitation or even knowledge of or consent to the doing of any particular acts Shri Kapur may have done in this period make the Prime Minister liable for them in any way ? I think not. The election petitioner had to be confined to the case he had set up. This, as already pointed out, could only be, on a fair reading of the petition on issue No. 1, one of specific authorisation of particular individual acts of Shri Kapur. Of this there is not only no evidence whatsoever on record but the evidence is to the contrary.

440. Issue No. 1, as framed, and the form of findings given on it indicate that the learned Judge realized that the election petitioner's case must be confined to proof of specific acts or statements of the original respondent herself which induced Shri Kapur, as a Government servant, to give some assistance in furtherance of her election, but the discussion of evidence and the inferences which the learned Judge reached upon the circumstances found, indicated that the learned Judge thought that Shri Kapur was constituted a sort of de facto agent even before Shri Kapur was clothed with legal authority on 1-2-1971. This appears to me to be the underlying current of thought and reasoning of the learned Judge- Thus, the result was that what was really decided was the case of a de facto agency which was neither set UP nor was the subject-matter of an issue. I, therefore, think that the principle that no amount of evidence could be looked into on a case not really set up was applicable here. It was quite unfair to expect the original respondent to meet a case, not set up at all. Furthermore, the case of de facto agency was. in the circumstances of the particular case, only possible to set up if the Prime Minister had made some request to Shri Kapur to So and conduct the election campaign even before he was ap pointed her election agent on 1-2-1971. If this was not established by evidence on record, it could be said that the bottom was knocked out of even such a hypothetical case. Had a case of de facto agency been even argued, it is not conceivable that certain cases of Division Benches of the Allahabad High Court itself would not have been cited to show on what kind of evidence it could succeed.

441. In Rustom Satin v. Dr. Sam-poornanan (1959) 20 Ele LR 221 at p. 243 (All) it had been held by a Division Bench of the Allahabad High Court (V. Bhargava and J.N. Takru. JJ.). inter alia (at p. 2431:

So far as the election law in this country is concerned it is a creation of statute and as such has to be interpreted in accordance with the provisions of that statute. Section 100 of the Act clearly refers to corrupt practices committed by four classes of persons only. viz., the candidate, his election agent, persons acting with the consent of the candidate or his election agent, and those acting without such consent. The corrupt practices committed by the first three classes of persons are covered by Section 100(1)(b). while those committed by persons falling in the fourth class are provided against in Section 100(1)(d)(ii).

The same Bench of the Allahabad High Court in J.P. Rawat v. K.D. Paliwal. (1959) 20 Ele LR 443 (All) had held (at p. 456):

...even in the case of admitted workers in whose case also general consent to work for the candidate may be implied, the consent of the returned candidate to corrupt practice or practices complained against have to be separately proved, and reliance upon general con sent, express or implied, to work legiti mately for the candidate is not deemed sufficient.

442. After 14-1-1971, the Prime Minister, like everyone else concerned, obviously believed that Shri Kapur was no longer a Government servant. As I have already pointed out, this was the legally correct assumption. Even if one were to assume, for the sake of argument, that this was not so and that the learned Judge had correctly held that Shri Kapur's resignation became effective from 25-1-1971, there could be no liability for a corrupt practice by merely permitting Shri Kapur to resign. The uncontroverted evidence is that, after resigning. Shri Kapur went to Rae Bareli voluntarily, without any request or suggestion made to him by the original respondent or by anybody else to go to Rae Bareli and work for her election. Even his appointment as the original respondent's election agent on 1-2-1971, according to Shri Kapur's evidence, was the result of a suggestion of Shri Dal Bahadur Singh at Rae Bareli, apparently during the Prime Minister's visit to her constituency.

443. Cases in which help rendered voluntarily by a Government servant without any attempt by the candidate concerned to ''obtain" or "procure" it were held not to constitute a "corrupt practice" of the candidate, whatever be the impropriety of it for the Government servant himself, were completely overlooked by the learned Judge. In Hafiz Mohd. Ibrahim v. Election Tribunal (1957) 13 Ele LR 262 (All) a Division Bench of Allahabad (Mootham C.J. and Mukerii, J.) had pointed out that a Government servant has a "private personality" too. Similar observations of Dua J. are found in a Division Bench decision of the Punjab High Court (See : Ram Phal v. Braham Parkash 23 Ele LR 92) : AIR 1962 Punj 129.

444. On the conclusions reached by the learned Judge himself the acts of Shri Kapur between the period 25-1-1971 and 6-2-1971, the date of the publication of the notification, could not be taken into account as no corrupt practice could Possibly exist in that period, due to the participation of Shri Kaour in any election work. And, with regard to the two earlier periods, beginning with 7-1-1971, I am unable to see, for the reasons given above, how any corrupt practice could be committed by the original respondent, vicariously due to anything done by Shri Kapur, even if one were to apply the law as it existed before the amendment of the Act.

445. Another question, which I may now briefly consider, is the date from which the original respondent could be said to have held herself out as a candidate. If she was not a "candidate", upto 25-1-1971, as defined by law, that would, in itself, be a sufficient ground for wiping out the effect of findings of the learned Judge on the two periods dealt with above.

446. The learned Judge had inferred that the Prime Minister was a "candidate" from 29-12-1970 as she had held herself out as a candidate when she answered a question put to her on 29-12-1970 at a Press Conference at New Delhi. The question and answer were as follows:

Q. A short while ago there was a meeting of the opposition leaders and there they said that the Prime Minister is changing her constituency from Rae Bareli to Gurgaon?

P. M. No, I am not.

In the witness box, the Prime Minister disclosed that what she meant by the answer was that she would not contest from the Gurgaon constituency. On further cross-examination, she stated:

It is wrong to assume that while giving the reply marked 'B' in the transcript (Ext. 132) I conveyed that I was not changing my constituency from Rae Bareli at all and emphatically held out that I would contest election again from Rae Bareli. In my opinion there is no basis for this assumption.

447. The learned Judge had, In preference to the statement of the Prime Minister herself as to what she meant, together with the evidence given by her Secretariat that there were entreaties or offers to her from other constituencies that she should be their representative, relied on Press reports and what members of other parties thought and did as a result of the above-mentioned statement of the Prime Minister on 29-12-1970. The learned Judge also referred to Paragraph 1(A) of the additional written statement which runs as follows:

That in fact, there were offers, from other Parliamentary Constituencies in India, requesting this respondent to stand as a candidate for the Lok Sabha from those Constituencies and a final decision in regard to the Constituency was announced by the All India Congress Committee only on January 29, 1971, and she only held herself out as a candidate on filing her nomination at Rae Bareli on 1st of February, 1971 (underlining, is by me.)" He had also referred to the visits made by Congress (R) leaders to Rae Bareily, particularly, Shri Dinesh Singh, and Shri Gulzarilal Nanda and by Prof. Sher Singh. He had not accepted the explanation that they had gone there of their own accord.

448. The learned Judge had also considered several English authorities but had noted that the law here was not the same as in England. It had been laid in Munniswami Gounder v. Khader Sheriff (1953) 4 Ele LR 283 at p. 292 (Ele. Tri., Vellore) where it was said:

In this respect the law in this country makes a significant departure and that departure, in our opinion, again emphasises the application of vital democratic principle, in the light of differing conditions. We may here note, briefly, a feature of the political practice in the United Kingdom, which repeatedly, colours and influences the English Cases, viz., the fact that there a person is often adopted as a candidate by a political association, without any move on his be half, until a particular stage when the adoption is formalised by his consent.

449. I am unable to see what bearing the activities of opposition leaders and statements issued by them or Press Reports, with regard to the candidature of the original respondent No. 1 from the Rae Bareily constituency, had upon either an interpretation of her own statement of 29-12-1970, or the date on which she made a final decision to stand as a candidate from the Rae Bareily constituency or the communication of that decision by her to her constituency. The material relied upon by the learned Judge consisted of speculation and hearsay coming from persons who were certainly interested in finding out which constituency the Prime Minister, who had a choice of Gurgaon, a constituency much nearer to New Delhi, and, possibly of other constituencies as well if she only wanted to change it. Absence of proof of a desire to change the constituency is not proof of a positive "holding out". It has been repeatedly laid down in decided cases on the point that what is relevant is not what other people think or say about what a possible candidate would do, but what the candidate concerned himself has said or done, so as to amount to "a holding out" as a candidate by the candidate from a particular constituency. Mere speculation or rumour circulated by other persons interested in finding out the Prime Minister's constituency could only prove what their own expectations or beliefs were. This type of "evidence", strictly speaking, could not even be admissible unless it could be related to something actually said or done by the candidate. All that such "evidence" could prove was that people interested were speculating or indulging in guesswork. It seems to me that the learned Judge did not take into consideration the tactics in the political game which, to some extent, every party participating in such a game adopts. Some of those tactics are quite legitimate and honourable, but others are not.

450. The learned Judge referred to the contents of a speech made by the Prime Minister at Coimbatore in South India, in the early part of January, 1971. castigating one of the tactics of the opposition parties in choosing Shri Raj Narain to oppose her, for purposes of maximum "mud slinging". The learned Judge pointed out that the Prime Minister admitted, in her evidence, that she could have said this in her speech at Coimbatore, She was not asked whether this amounted to holding herself out as a candidate from Rae Bareily constituency. If such a question had been asked, there is little doubt that she could have explained the statement by the context in which it was made, just as she had given the precise meaning of her statement of 29-12-1970, in the context in which it was made. Apparently, the context of the statement made in early January in Coimbatore was that the opposition parties had chosen a candidate, who, in the opinion of Prime Minister, possessed certain capacity for "mud slinging" which others did not have. The apparent object of what she mentioned in the speech was to expose tactics of opposition parties in choosing such a candidate from a constituency from which they thought the Prime Minister must be standing. It was obviously meant to disparage such tactics and not to disclose her own intentions or future course of action. A healthy democratic practice or convention certainly is that the election of some candidates, of certain 6tature and standing or position in public life, is not contested. To point out that the opposition parties, far from intending to adopt such an attitude towards her, were busy devising methods of maligning her, could not reasonably be construed as a holding out of herself as a candidate from a particular constituency unless one was predisposed to put such a construction on every ambiguous statement of the Prime Minister, made anywhere after the dissolution of Parliament in December, 1970. until the election in the first week of March, 1971. Similarly, the context of the question of 29-12-1970, put to the Prime Minister at a conference at New Delhi, was that members of the opposition parties thought that she may be contesting from Gurgaon. In the light of the opposition tactics, which the Prime Minister herself had referred to in her speech at Coimbatore it was not unlikely that the Prime Minister would have preferred to keep her own intentions about the constituency, from which she would ultimately stand, either a closely guarded secret, or, at least, in a fluid State. In any case, it was not likely that she would announce her own intention very clearly to stand from any particular constituency until it was considered by her or by her political advisers to be politically expedient to do so. Again, it may be that the prospect of such a leader standing from a particular constituency was likely to have a politically exhilarating effect upon the workers or on party activities in that constituency. From such a point of view also, the Congress Party (R) of the Prime Minister may also have preferred that the Prime Minister should not announce her decision until the last moment. A disputed question of fact on such a matter could not possibly be determined by a Court on evidence of guess-work or speculations of others which are, strictly speaking, not relevant. I have indicated here that if some guess-work were permissible, as it is to give its benefit to the person against whom circumstantial evidence is to be used, other possible explanations and interpretations were not excluded. The question had to be decided on Proof of the actual statements and actions of the candidate herself which could amount to clear and unequivocal expressions of intention, showing a decision to stand from a particular constituency, meant primarily for the benefit of the voters of the particular constituency so chosen by a candidate. Where was that evidence here ?

451. It seems to me that the learned Judge had given an exaggerated importance to what were either not strictly relevant or insignificant matters in preference to what could be and was decisive and unequivocal.. I do not think that the answer of the Prime Minister at the Press Conference on 29-12-1970 or the contents of her speech in Coimbatore, in early January, 1971. or even a declaration or announcement of the All India Congress Committee on 29-1-1971, assuming that there was such an announcement, could mean that the Prime Minister had herself finally decided to contest from the Rae Bareily constituency and had held herself out as a candidate for this constituency. This holding out had to take place by the Prime Minister herself and not by the Congress Committee. Even if the fact of a declaration made by the Congress Committee, on 29-1-1971, which is all that the written statement admits, proves that the Prime Minister was chosen by her party for this particular constituency on this date, her own decision on the matter could only come and was proved by her to have actually come later than that. This admission was, in my opinion, misconstrued by the learned Judge as a contradiction. In the absence of any evidence whatsoever which could conflict with the Prime Minister's statement about the actual date of her final decision to stand from this Constituency, it seems to me that the learned Judge had no option reasonably open to him except to accept the correctness of the only and the best evidence on this question available in the case. The learned Judge in observing, quite unnecessarily, that his finding on this question was not going to be affected by the importance of the office held by the Prime Minister, seems, subconsciously, to have been so affected by it that he did not act on the normal rule that the best evidence of a person's state of mind is his or her own statements and actions and not of others. He seems to have felt that judicial independence consists in inverting this rule and judging the matter primarily from the evidence of the states of minds and opinions and actions of other individuals in the case of a Prime Minister of this country. I do not consider this to be a judicially correct approach.

452. The fact that the tour programmes were circulated in advance for the Rae Bareily District, in which the Prime Minister made electioneering speeches, could also not determine what the final declaration of intention by the Prime Minister was soma to be in regard to the Rae Bareily constituency. It is not enough that the candidate should have by then formed an intention to stand from a particular constituency. There is a gap between intent and action which has to be filled by proof of either statements or of conduct which amount to unequivocal declarations made to voters in the constituency in order to amount to a "holding out" to them. This seems to me to be the clear position in the law as laid down by Courts in this country on the meaning of Section 79(b) of the Act.

453. It is significant that despite the large number of speeches and statements the Prime Minister must have made throughout the country, in this period, not a single statement made by her could even be cited in which she had said before 1-2-1971, that she was standing as a candidate from the Rae Bareily constituency. It is possible, as I have indicated above, that this may be a part of the political game or permissible party tactics so as to keep opposition parties guessing. It seems to me that the learned Judge was overlooking the context, the probabilities, the natural course of events in such a case, the legal and logical relevance and effect of what he thought was decisive, and, finally, the importance of the statement of the Prime Minister herself on this question supported by complete absence of any evidence to show that she had herself made any clear and decisive statement in any speech or conversation which could shake her stand, that her final decision and unequivocal act was the filing of a nomination paper as a candidate on 1-2-1971 at Rae Bareily. I may mention here that, according to the findings of the learned Judge himself, the question of the Prime Minister holding herself out as a candidate for the Rae Bareily constituency became quite immaterial after 25-1-1971, and, on the findings I have reached above, the whole question becomes unimportant. However, I will indicate some authorities which the learned Judge himself had noticed.

454. In S. Khader Sheriff v. Munnuswami Gounder . this Court said at p. 473 of SCR : at p. 777 of AIR:

When, therefore, a question arises under Section 79(b) whether a person had become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate, so that it could be said of him that he held himself out as a prospective candidate. That he has merely formed an intention to stand for election is not sufficient to make him a prospective candidate, because it is of the essence of the matter that he should hold himself out as a prospective candidate.

445. In J.P. Rawat v. Krishna Dutt Paliwal (1959) 20 Ele LR 443 at P. 463 (All) a Division Bench of the Allahabad High Court (V. Bhargava and J.N. Takru. JJ.), following the decision of this Court in S. Khader Sheriff's case :

The determining factor, therefore, is the decision of the candidate himself, not the act of other persons or bodies adopting him as their candidate.

456. In Haji Abdul Wahid v. B.V. Keskar (1960) 21 Ele LR 409 (All) it was held by a Division Bench of the Allahabad High Court (R.N. Gurtu and S.N. Dwivedi, JJ.):

(i) that the purchase of the nomination forms and voters lists, could not amount to holding out as a candidate; (ii) the arranging of public meetings by the officials and the respondent's moving about in the constituency on the 15th and 16th could not by themselves amount to a holding out by the respondent as a prospective candidate on those days in the absence of evidence to show that the respondent had utilised those meetings and tours for the purpose of making utterances of an electioneering character.

457. In K.K. Mishra v. Banamali Babu, 38 Ele LR 451 at p. 475 : AIR 1968 Orissa 200 at p. 205 the Orissa High Court, relying upon the following observations of this Court in S. Khader Sheriff's case , held that a holding out within the meaning of

Section 79(b) must be by declaration of the candidate to an elector or to the electorate in a particular constituency and not to others:

It may be that the holding out which is contemplated by that section is to the Constituency : but if it is the Central Committee that has to decide who shall be adopted for election from the concerned constituency, any declaration made to the Committee is. in effect, addressed to the constituency through its accredited representative.

497. It appears to me that both parties to the case now before us were under the impression that the expenses incurred by a political party over its candidate's election was outside the prescribed limit which operated only against expenditure by a candidate himself. Hence, the petitioner had not pleaded expenses incurred by the party of the original respondent as expenses authorised by the original respondent. The test of authorisation would naturally be the creation of a liability to reimburse whoever spends the money and not necessarily the provision of money before-hand by the candidate on whose behalf it is spent. Nevertheless, the authorisation has to be set up and proved. In the written statement filed on behalf of he original respondent, it was very frankly admitted that some expenditure, incurred by the local Congress Party itself, had not been shown as election expenses of the candidate herself. This was the position because, on the side of the original respondent also, the law was understood to be as it is found now clarified by the addition of an explanation to Section 77(1) of the Act.

498. The second question which arises for consideration Is : if some expenses are shown or admitted to have been incurred by the candidate's party or third persons over the election of the successful candidate, is it possible to separate it from a total expenditure on more than one constituency by some process of estimation and apportionment ? Of course, this " question can only arise if it is first proved that whatever expenditure was incurred by candidate's party or by some other person, who may be a friend, a relation, or a sympathiser, was incurred in circumstances from which it can be inferred that the successful candidate would reimburse the party or person who incurred it. As I have already held, it is only then that expenditure could be held to be authorised by the candidate. It is not enough that some advantage accrued or expenditure was incurred within the knowledge of the candidate. This was very clearly brought out in Rananjaya Singh v. Baiinath Singh . In this case, the Manager, Assistant Manage Rule 20 Zila-dars, and peons of the proprietor of an estate In Uttar Pradesh had carried on election work, after having been given a holiday on full pay by the proprietor of the estate who was the father of the successful candidate. It was contended that inasmuch as these persons were virtually employees of the candidate himself, their salary for the day must be added to the list of election expenses. This Court repelled this contention on the ground that this extra expenditure had not been authorised by the candidate or his agent Hence, it need not be shown as an item of election expense. Voluntary expenditure by friends relations, or sympathisers and expenditure incurred by a candidate's party, without any request or authorisation by the candidate, has never been deemed to be expenditure by the candidate himself. (See : Ram Dayal v. Brijraj Singh ; Magraj Patodia v. R.K Birla .

499. An attempt was then made to pass the responsibility on to the original respondent for the expenses of at least 23 vehicles whose numbers are mentioned in a letter dated 25th February, 1971, writ ten by Shri Kapur, who then (was) the original respondent's election agent, and sent to the District Officer, Rae Bareily, stating as follows:

Sir, I beg to say that the District Congress Committee, Rae Bareily has taken the following cars for election purposes in the three Parliamentary Constituencies, Rae Bareily, Amethi and Ram Sanehi Ghat. You may, therefore, kindly release them.

After giving numbers of the vehicles the letter proceeds:

It is therefore requested that the above said cars may kindly be released without delay. The letter of the President of District Congress Committee about the above said cars is enclosed here with.

The letter of the President of the Committee, mentioned by Shri Kapur. was a rather urgent request made to him by Shri Dal Bahadur Singh, on 24-2-1971 (Ex. A-43), after informing him that he is in difficulties as he had tried to find out unsuccessfully the whereabouts of Shri V. Vajpayee, who was contesting election from Amethi Parliamentary Constituency, and of Shri Baiznath Kureel, who was contesting the election from Ram Sanehi Parliamentary Constituency. He, therefore, asked Shri Kapur, the election agent of the original respondent, to send a letter to the District Officer, who had refused to release the vehicles without the endorsement of the candidate concerned or his or her election agent.

500. It is clear from the abovementioned correspondence that Shri Kapur was not speaking on behalf of the other two candidates of adjoining Parliamentary Constituencies. He was not even undertaking to pay anything for the use of the vehicles on behalf of the original respondent. Shri Kapur also did sot state that these vehicles were needed for work In the original respondent's constituency.

He merely forwarded the letter with a request for compliance with what Shri D.B. Singh wanted. Shri Dal Bahadur Singh was concerned and entrusted with conducting electioneering work in three adjoining Parliamentary Constituencies successfully. He had; therefore, made a frantic appeal to Shri Kapur to come to his help. Shri Kapur, without conceal ing any fact, had sent this very letter with a request for the release of the vehicles to the District Officer concerned. On this evidence, the learned Judge came to the conclusion that it was not possible to say which vehicles, said to be jeeps, had been utilized for election work and in which constituency. The learned Judge after considering the evidence recorded the finding that it was not possible to hold that the 23 vehicles in question had been used exclusively for the purposes of the election of the original respondent, and not for "general party propaganda purposes" for which the original respondent was not liable to pay.

501. In Hans Rai v. Hari Ram (1972) 40 Ele LR 125 at pp. 128-129 (SC) this Court in a similar situation said:

Whichever way one looks at the matter it is quite clear in view of the decision of this Court reported in Rananjaya Singh v. Baiinath Singh that the expenditure must be by the

candidate himself and any expenditure in his interest by others (not his agents within the meaning of the term in the election law) is not to be taken note of, Here the hiring was by the Congress Committee which was not such an agent and therefore the amount spent by the Congress Committee cannot be taken as an amount which must compulsorily be included in the expenditure over the election by a candidate. If this be the position, we have to decide whether this amount spent on the jeeps must be taken to be an expenditure made by the candidate himself. Of that there is no evidence. The bill stands in the name of the Congress Committee and was presumably paid by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned Judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty is that this jeep was used also for the general Congress propaganda in other constituencies.

502. In Shah Javantilal Ambalal v. Kasturilal Nagindas Doshi (1972) 42 Ele LR 307 at p. 311, this Court held:

It is now well settled that expenses incurred by a political party in support of its candidates do not come within the mischief of Section 123(6) read with Section 77 of the Act.

503. In Samant N. Balakrishna v. George Fernandez

this Court pointed out:

In India all corrupt practices stand on the same footing. The only difference made is that when consent is proved on the part of the candidate or his election agent to the commission of corrupt practice, that itself is sufficient. When a corrupt practice is committed by an agent and there is no such consent then the petitioner must go further and prove that, the result, of the election m s(c) far as the returned candidate is concerned was materially affected

504. However, as 1 have already held, there is no rase or evidence before us that the Congress Party was the agent, express or implied, of the original respondent or acting as the channel through which any money whatsoever was spent by the original respondent. The petition could not possibly succeed on the ground of exceeding election expenses. On the other hand, on the findings given by me above, the expenses on the construction of rostrums were also erroneously added by the learned Judge, In fact, it seems that other two items mentioned there were also wrongly added. Expenses of the installation and use of loud-speaker's and the power supplied were certainly shown to have been borne, by the Congress Party itself. It is true that when elections of persons in the position of the Prime Minister or even of Ministers, whether in the Central Government or a State Government, take place, a number of people come forward to either give or thrust their supposed aid in the election. It may be impossible for the candidate to refuse it without offending them. But it is also impossible for the Courts to make the candidate himself or herself responsible so as to impose an obligation upon the candidate to find out what expenses incurred by them were and then to add these on to the candidate's account of expenses. That would be. obviously, a most unfair result. And, this is not what the law requires in this Country. The law requires proof of circumstances from which at least implied authorisation can be inferred.

505. The third and the last and a subsidiary submission on behalf of the election petitioner, on election expenses,, was that, Shri Dal Bahadur Singh not having been produced by the original respondent, some sort of presumption arises against the original respondent. I do not think that it is possible to shift a burden of the petitioner on to the original respondent whose case never was that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chenna Reddy v. Ramchandra Rao (1972) 40 Ele LR 390 at p. 415 (SC) was relied upon to submit that a presumption may arise against a successful candidate from the non-production of available evidence to support his version. Such a presumption, under Section 114 Evidence Act, it has to be remembered, is always optional and one of fact, depending upon the whole set of facts. It is not obligatory.

506. In Chenna Redy's case (1972) 40 Ele LR 390 (SC) (supra), the evidence seemed to have resulted in a prima facie case whose effect the respondent had to get rid of- In the case before us, the election petitioner had summoned Shri M.L. Tripathi (P.W. 59), the Secretary of the District Congress Committee, who appeared with account books of the Party at Rae Bareily. The election petitioner could get nothing useful out of his evidence. Even if the election petitioner did not, for some reason, desire to summon Shri Dal Bahadur Singh similarly, his counsel could have requested the Court to exercise its discretionary powers under Order XVI, Rule 14 C.P.C. but this was never done. A presumption could, not arise on the facts and circumstances of a case in which it could not be said that Shri Dal Bahadur Singh's evidence was necessary to discharge some burden of the original respondent. The original respondent had discharged whatever onus lay upon her by producing her own election agent Shri Kapur, who had kept her accounts. And, she had herself appeared in the witness-box and faced a cross-examination which could not be held up as an example of complete fairness and propriety. I do not quite understand what presumption could possibly arise, due to non-production of Shri Dal Bahadur Singh, against what part of her case, and to what effect. It could certainly not be suggested that there was any duty on her part to repeal some case never set up against her. It was nobody's case that the local Congress Party was her agent.

507. I may now very shortly deal with the objection that, as a number of Members of Parliament belonging to the opposition parties were in detention, under the preventive detention laws, which could not be questioned before the Courts of law, because of the declaration of the emergency by the President, there was a procedural defect in making the amendments of the Act of 1951 and the 39th Constitutional Amendment.

508. Article 122 of the Constitution prevents this Court from going into any question relating to irregularity of proceedings "in Parliament". It reads as follows:

122. (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

509. What is alleged by the election petitioner is that the opposition Members of Parliament, who had been detained under the preventive detention laws, were entitled to get notice of the proposed enactments and the 39th Amendment, so as to be present "in Parliament", to oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of Article 122 which debars every Court from examining the propriety of proceedings "in Parliament". If any privileges of Members of Parliament were involved, it was open to them to have the question raised "in Parliament". There is no provision of the Constitution which has been pointed out to us providing for any notice to each Member of Parliament. That, I think, is also a matter' completely covered by Article 122 of the Constitution. AH that this Court can look into in appropriate cases is whether the procedure which amounts to legislation or, in the case of a Constitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, however, it will accept, as conclusive evidence, a certificate of the Speaker that a Bill has been duly passed. (See : State of Bihar v. Kameshwar .

510- Again, this Court has held, in Sharma v. Sri Krishna. . that a notice issued by the Speaker of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of procedure relating to proceedings for breach of privilege have not been observed. All these are internal matters of procedure which the Houses of Parliament themselves regulate.

511. As regards the validity of the detentions of the Members of Parliament, that cannot be questioned automatically or on the bare statement by counsel that certain Members of Parliament are illegally detained with some ulterior object. The enforcement of fundamental rights is regulated by Articles 32 and 226 of the Constitution and the suspension of remedies under these Articles is also governed by appropriate Constitutional provisions. Their legality and regularity can not be collaterally assailed by mere assertions made by Counsel before us. I, therefore, overrule these objections to the validity of the amendments and the 39th Amendment as we cannot even entertain them in this manner in these proceedings.

512. I will now turn to the validity of Clause (4) of Article 329-A sought to be added by Section 4 of the 39th Amendment. I will quote the whole of Section 4 as some argument was advanced on the context in which Clause (4) of Article 329-A occurs. Section 4 reads as follows:

4. In Part XV of the Constitution, after Article 329, the following article shall be inserted, namely:

329-A. (1) Subject to the provisions of Chapter II of Part V (except Sub-clause (e) of Clause (1) of Article 102). no election

(a) to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election;

(b) to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election:

shall be called in question, except before such authority (not being any such authority as is referred to in Clause (b) of Article 329) or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for ail other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned.

(2) The validity of any such law as is referred to in Clause (1) and the decision of any authority or body under such law shall not be called in question in any court.

(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in Clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be. to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in Clause (1).

(4) No law made by Parliament be fore the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have be come void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any Court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be end shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in confirmity with the provisions of Clause (4).

(6) The provisions of this article shall have effect notwithstanding anything contained in this Constitution.

513. Counsel for both sides are agreed that for the purposes of the case before us, we need not consider the Constitutional validity of Clauses (1) to (3) of the newly introduced Article 329-A of the Constitution I will therefore, concern myself only with the Constitutional validity of Clause (4) of Article 329-A of the Constitution.

514. Learned Counsel for the election-petitioner contended that the constituent or amending power contained in Article 368 of our Constitution had been misused to achieve some purpose which was either outside the Article or which struck at the roots of the "basic structure" or "the essential features" of our Constitution. It was submitted that the amendment is invalid on an application of the tests laid down by a majority of the 13 Judges who indicated certain basic and inviolable principles of our Constitution in Kesavananda Bharti's case . It was contended that the newly added Article 329-A(4) of the Constitution, far from constituting a Constitutional law, which alone could be made under Article 368, did not even satisfy the tests of a law, in as much as it did not lay down any general rule applicable to all cases of a particular class but was really designed to decide one particular election case, which is now before us for hearing, in a particular way. According to learned Counsel, the amending bodies had, under the guise of an exercise of constituent power, really decided a particular election dispute arbitrarily without following the elementary principles of judicial procedure or applying any intelligible norms or principles of justice either as a Court of law would have done or as any body of persons entrusted with the duty to decide a matter justly or quasi-judicially could possibly have done. The assumption underlying this argument was that setting aside the results of a judicially recorded judgment and order by declaring it void and the validation of an election held by a Court of law to be invalid necessarily involves the adoption of a judicial or a quasi-judicial procedure if the results are to appear just and not violative of the basic principles of natural justice which must be held to be parts of the Rule of law envisaged by our Constitution. What had been done by Clause (4) according to the learned Counsel for the election petitioner, was. nothing short of lifting and placing the elections of the first four dignitaries of State outside. the range of questionability before any authority whatsoever either in. the past, present or future. As the only election out. of these dignitaries still in dispute at the time of the passing of the 39th Amendment was the election of the Prime Minister to the House of the People, now under consideration in the appeals before us, it was suggested that all this was done, wholly and solely, though indirectly, with the object of validating the Prime Minister's election as a Member of the House of Representatives in 1971. It sought to place the Prime Minister and the Speaker in a separate class by themselves as candidates at a general election for the membership of the House of Representatives. It was urged that there could be no reasonable or logical nexus between the alleged objects of such a classification and the results of the amendment made. It was urged, that, inasmuch as a Prime Minister holds the pivotal position in the governance of the country, there could not be a less and not more need to ensure that the election of the holder .of such a high office to a Parliamentary seat had been free from any corrupt practice. It was urged that the test and the procedure for determining whether the holder of such an exalted, responsible, and important office was duly elected as a Member of Parliament could not, logically or reasonably, be different from that which ordinary Members of the Parliament had to So through. It was pointed out that, in a case covered by this clause, there could be no consideration at all. if the amendment is upheld, of the validity of a past election by any authority in the future as all ejections in this very special and exceptional class had been validated without any qualification and quite unconditionally. The effect was, it was urged, that the present Prime Minister was placed in a very privileged and exalted position which was not enjoyed by a past Prime Minister and which was not meant to be occupied by any future Prime Minister. Such a procedure and such a result, it was contended, made a mockery of the concept of free and fair elections under a democratic system. Furthermore, it was urged that it was destructive of the concepts of rule of law, of equality before law. and of just determination of judicially triable disputes. Taking away of even the supervisory jurisdiction of superior "Courts in elections of a certain class of dignitaries was characterized as a gross violation of a basic principle of our Constitution. It was also submitted that. If what was intended to be conveyed by the amendment was that Parliament had withdrawn the case before us from the sphere of judicial scrutiny and determination and had decided in uself, .as was stated in Ms opening address by the learned Counsel for the original! respondent, not, merely was - the basic eo-ostitutuwial principle of separation of powers set at naught but the primordial rule of natural justice, that no one should be a judge in his own cause, had been infringed inasmuch as the dispute was really between a majority party and the numerically minority groups or parties in the Houses of Parliament. No hearing could be given to leaders of the numerically minority groups of parties in Parliament because they were, it was submitted, illegally detained under Preventive Detention laws after a declaration of emergency by. the President of India, with the result that members of Parliament who did not support the ruling party were denied access to Courts so as to secure their release from detention and could not take part in proceedings which produced the Acts amending the Act of 1951, and, the 39th Amendment. I have already dealt with and rejected the objection to the proceedings of the Houses of Parliament, on the collateral ground of allegedly illegal detentions of opposition leaders,

515. All the contentions of learned Counsel for the election petitioners, apart from the alleged procedural defect in amending the Act of 1951 and the Constitution when a number of opposition Members of Parliament are detained under the Preventive Detention laws, already dealt with by me, seemed directed towards producing two results either simultaneously or alternatively; firstly, to persuade us to hold that the constituent power had been exceeded or sought to be utilised for extraneous purposes falling outside the purview of Article 368 of the Constitution altogether : and, secondly, to convince us that the effects of the 4th clause of Article 329-A must be such that, If this purported addition to our Constitution was upheld, the "basic structure or the "basic features" or "the underlying principles" of our Constitution will be Irreparably damaged so that it could not any longer be looked upon as the same Constitution. It was submitted that the majority view in Kesavananda Bharti's case , which was binding upon us, will compel us to invalidate Clause (4) of Article 329-A. There was in the course of arguments, considerable overlapping between tests and considerations appertaining to the purposes and those involving the effects, consequences, or implications of Clause (4) if it was upheld. It was proposed that purposes should be ascertained and their validity determined, inter alia, in the light of the consequences and implications of upholding the validity of the impugned clause. Both sets of contentions involved a definition of the scope of Article 368 and a determination of the exact nature of the function actually performed by the constituent authorities in passing the impugned Clause (4) of Article 329-A.

516. We have heard the learned Attorney-General and the learned Solicitor-General of India, in defence of the 4th clause of Article 329-A sought to be added by the 39th Amendment, as well as Mr. A.K. Sen and Mr. Jagannath Kaushal. learned Counsel for the original respondent, who also supported the validity of the impugned clause. The 1st contention of the learned Counsel seemed directed towards inducing us not to look beyond the language to discover the purposes or the nature of the function performed in passing Clause (4) of Article 329-A or its effects. This contention had necessarily to rest upon the assumption that provisions of Clauses (4) and (5} and (6) of Article 329-A, sought to be introduced by the 39th Amendment, were valid and had the effect of depriving this Court of jurisdiction to determine the validity of Clause (4) by exploring the purposes and objects which may lie behind the plain meaning of Clause (4). Our difficulty, however, is that, even an attempt to give its natural and literal meaning to every word used in Clause (4). after hearing the statements made by learned Counsel supporting the 39th Amendment, to the effect that Parliament had itself examined the validity of whatever order and findings on question of fact or law. are referred to there, and had reached the conclusion that the order and each of the findings of fact on which it was based must be adjudged to be void and of no effect, baffles us very much. This could only mean that Parliament, in its constituent capacity, had functioned as though it was a direct Court of Appeal from a judgment of the High Court while an appeal in the last Court is pending-a procedure which has not been shown to have been followed so far in any case brought to our notice either decided in this country or anywhere else in the world, all the cases cited to support such a view being distinguishable on facts and law applicable.

517. In the circumstances of this case, set out above, the findings on contested questions of fact and law and the order indicated by Clause (4) could only be those contained in the judgment under appeal by both sides before us. The language of Clause (4) was, according to the submissions of learned Counsel supporting the amendment, itself meant to convey that, after going" into the disputed questions of fact, the constituent bodies had reached the conclusion that the order and the findings must have no legal effect. Indeed, the Solicitor-General went so far as to submit that Parliament must be deemed to be aware of the contents of the whole record of the proceedings in the High Court, including the pleadings, the evidence, and the findings in the judgment of the High Court, as these were all available to it. In other words, we must imagine and suppose that, whatever may be the actual position. Parliament had sat in judgment over the whole case as a Court of appeal would have done. But, the impugned Clause (4), if valid, would compel us to make a contrary assumption Inasmuch as it declares that all laws prior to the 39th Amendment, relating to election, petitions and "matters connected therewith", which must include the grounds given in Section 100 of the Re presentation of the People Act, 1951, were neither to be applied nor ever deemed to have applied to such a case as the one before us. This surely meant that they must be "deemed" not to have been applied by Parliament itself, according to the well-known rule of construction that a legal fiction, introduced by a deeming provision, must be carried to its logical conclusion and we must not allow our imagination to boggle at the consequences of carrying the fiction to its logical conclusions (See : East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109).

548. Blackstone, while enunciating the theory of Parliamentary sovereignty in the 19th century, as it was to be later expounded in the 20th century by Prof. A. V. Dicey, also claimed superiority for "the law of nature which was common to all mankind". He said about this law:

It is binding over all the globe, in all countries, and at all time; no human laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.

(See : Dicey-Law of the Constitution p. 62).

549. It is a matter of legal and Constitutional history that English Judges finally rejected claims based upon vague philosophical concepts or upon a law of nature or appeals to the "yet auguster thing" pitted against statutory law except in so far as certain rules of natural justice and reason could impliedly be read into acts of Parliament due to absence of statutory prohibition and the need to observe them having regard to the character of the function required by a statute to be performed. Constitutional historians, such as Holdsworth, have pointed out how English Common Lawyers, some presiding as Judges over King's Courts of Justice, others sitting in Parliament as Legislators, joined hands to evolve, sustain, and give life to principles of "Sovereignty of Parliament" and the "Rule of Law" as understood by them. Dicey asserted, in his "Law of the Constitution", that both these principles so operated as to reinforce each other instead of coming into conflict with each other. One wonders whether this could be said of later times when the need for more rapid transformations of social and economic orders, in an effort to build up a welfare State in Britain, led to serious curtailments of what were at one time considered natural and inviolable rights and to adoption of legislative devices such as Henry VIIIth clause. We know that these developments evoked a powerful protest from a Chief Justice of England, Lord Hewart, who wrote a book on the subject : "New Despotism". today, however, it cannot be said that the Courts of justice in England do not see the implications of a welfare Socialistic State which may demand the curtailment of liberties of subjects in many directions in order that the substance of democratic freedom, only attainable through removal of economic, social, and educational disparities and barriers, may be attained.

550. Willis, dealing with the development of American Constitutional Law, wrote about the claim of Coke, mentioned above, to invalidate Acts of Parliament by reference to certain fundamental principles of natural justice and of common law (See Willis on Constitutional Law-Edn. 1936 p. 76):

This dictum of Coke, announced in Dr. Monham's case (1610) 8 Co. Rep. 118-A was soon repudiated in England, but the doctrine announced in Coke's dictum found fertile soil in the United States and sprouted into such a vigorous growth that it was applied by the United States Supreme Court in the decision of cases coming before it, and it has been said that the doctrine of the supremacy of the Supreme Court is the logical conclusion of Coke's doctrine of control of the Courts over legislation.

551. It seems to me that judicial review of all law making, whether it appertains to the sphere of fundamental law or of ordinary Jaw, is traceable to this doctrine of judicial control by reference to certain basic principles, contained in a Constitution and considered too inviolable to be easily alterable. It may be that this doctrine is unsuitable for our country at a time when it is going through rapid socio-economic transformation. Nevertheless, so long as the doctrine is found embodied in our Constitution, we cannot refuse to recognise it.

552. In America, there was some doubt whether the doctrine of judicial review of all legislation naturally flowed out of the vesting of judicial power by Section 1 of Article 3 of their Constitution which says:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish.

(Willis on Constitutional Law-p. 1020). There is no article there, like Article 13 of our Constitution, which declared any kind of legislation abridging or taking away fundamental rights to be "void". The doubt was not without substance. It was removed by Chief Justice Marshall whose judgment in Marbury v. Madison 1803 Cranch 137 firmly established the doctrine of judicial review and the supremacy of the Supreme Court of America, in the judicial field of interpretation, as the mouthpiece of the Constitution, and, therefore, of the "Real Will" of the people themselves. The Constitution, as the basic or fundamental law of the land, was to operate there as the touchstone of the validity of ordinary laws just as the validity of laws made by British colonial legislatures was tested by reference to the parental Act of the British Parliament.

553. Under our Constitution, by Article 141 of the Constitution, power is vested only in the Supreme Court and in no other organ 01 authority of the Republic to declare the law "which shall be binding on all Courts within the territory of India." Article 143 of the Constitution of India also shows that whenever questions of fact or law have either arisen or are likely to arise, the President of India may, in view of their public importance, seek the opinion of the Supreme Court, by a reference made to the Court. The procedure on such a reference is that of a judicial authority which hears those interested and then gives its opinion. Article 32 of the Constitution gives a wide power to the Supreme Court "to issue directions or orders or writs", which is larger than that of the British Courts issuing prerogative writs, although it is confined to the enforcement of the rights conferred by part 3 dealing with fundamental rights. The power of the High Courts of the various States under Article 226 of the Constitution to issue appropriate directions, orders or writs "to any person or authority including in appropriate cases any Government", within the territories under its jurisdiction, extends to "any other purpose", that is to say, to purposes other than enforcement of fundamental rights. Article 227 also contains the power of a High Court to superintend the functioning of "all Courts and Tribunals" within its jurisdiction. These powers of the High Courts are subject to appeals to the Supreme Court, which is also a repository of a special jurisdiction under Article 136 to grant special leave to appeal "from any judgment,. decree, determination sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India." It is true that there is no mention or vesting of judicial power, as such, in the Supreme Court by any Article of our Constitution, but, can it be denied that what vests in the Supreme Court and High Courts is really judicial power '? The Constitution undoubtedly specifically vests such power, that is to say, power which can properly be described as "judicial power, only in the Supreme Court and in the High Courts and not in any other bodies or authorities, whether executive or legislative, functioning under the Constitution. Could such a vesting of power in Parliament have been omitted if it was the intention of Constitution makers to clothe it also with any similar judicial authority or functions in any capacity whatsoever?

554, The claim, therefore, that an amalgam or some undifferentiated residue of inherent power, incapable of precise definition and including judicial power, vests in Parliament in its role as a constituent authority, cannot be substantiated by a reference to any Article of the Constitution whatsoever, whether substantive or procedural. Attempts are made to infer such a power from mere theory and speculation as to the nature of the "Constituent power" itself. I do not think that, because the constituent power necessarily carries with it the power to constitute judicial authorities, it must also, by implication, mean that the Parliament, acting in its constituent capacity, can exercise the judicial power, itself directly without vesting it in itself first by an amendment of the Constitution. The last mentioned objection may appear to be procedural only, but, as a matter of correct interpretation of the Constitution, and, even more so, from the point of view of correct theory and principle, from which no practice should depart without good reason, it is highly important.

555. This impels me to consider such theories of sovereignty as we may find embedded in our Constitution. The term "sovereign" is only used in the preamble of our Constitution, which says:

We, the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens.

...

In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.

556. This Court, exercising the powers vested in it under the Constitution to declare the law of the land, cannot go behind the clear words of the Constitution on such a matter. We have to presume that the Constitution was actually made by the people of India by virtue of their political-sovereignty which enabled them to create a legally Sovereign Democratic Republic to which they consigned or entrusted, through the Constitution, the use of sovereign power to be exercised, in its different forms, by the three different organs of Government, each acting on behalf of the whole people, so as to serve the objects stated in the Preamble. This reference to "the people of India" is much more than a legal fiction. It is an assertion in the basic legal instrument for the governance of this country of the fact of a new political power. The legal effect of the terms of the instrument is another matter.

557. It has been pointed out in the Kesva-nanda Bharati's case , that the preamble of our Constitution did not, like that of the American Constitution, "walk before the Constitution", but was adopted after the rest of the Constitution was passed so that it is really a part of the Constitution itself. It means that the Constitution is a document recording an act of entrustment and conveyance by the people of India, the political sovereign, of legal authority to act on its behalf to a "Sovereign Democratic Republic." "This Constitution" has a basic structure comprising the three organs of the Republic the Executive, the Legislature, and the Judiciary. It is through each of these organs that the Sovereign Will of the People has to operate and manifest itself and not through only one of them. Neither of these three separate organs of the Republic can take over the function assigned to the other. This is the basic structure or scheme of the system of Government of the Republic laid down in this Constitution whose identity cannot, according to the majority view in Kesvananda's case (supra) be changed even by resorting to Article 368. It necessarily follows, from such a view, that Sovereignty, as the power of taking ultimate or final decisions on broad politico-legal issues involved in any proposed changes in the law, becomes divisible. The people are not excluded from the exercise of it. They participate in ail the operations of the Republic through the organs of the State. They bind themselves to exercise their individual and collective rights and powers only in the ways sanctioned and through agencies indicated by the Constitution. The Republic is controlled and directed by the Constitution to proceed towards certain destinations and for certain purposes only. The power to change even the direction and purposes is itself divided in the sense that a proposed change, if challenged, must be shown to have the sanction of all the three organs of the Republic, each applying its own methods and principles and procedure for testing the correctness or validity of the measure. This result, whether we like it or not, necessarily follows from our present Constitutional structure and scheme. If the judicial power operates here like a brake 01 a veto, it is not one which can be controlled by any advice or direction to the judiciary as is the case in totalitarian regimes. In our system, which is democratic, its exercise is left to the judicial conscience of each individual judge. This is also a basic and distinguishing feature of democracy as Prof. Friedman indicated in his "Law in a Changing Society" (p. 61) quoted by me in Kesvananda Bharti's case (supra) at p. 859.

558. In Kesvananda Bharti's case , I had approvingly quoted the views of Prof. Ernest Barker, who, in his "Social and Political Theory", claiming to be elaborating the theory underlying the preamble to our own Constitution, pointed out that, inasmuch as the Constitution is the instrument which regulates the distribution between and exercise of sovereign power, by the three organs of the State, and it is there constantly to govern and to be referred to and to be appealed to in any and every case of doubt and difficulty, it could itself, conceptually, be regarded as the true or "ultimate" sovereign, that is to say, Sovereign as compared with "immediate" sovereignty of an organ of the Republic acting within its own sphere and at its own level.

559. Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate "political" sovereign nor a legally unalterable and absolute sovereign. All Constitutional and "legal" sovereigns are necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear "allegiance" to the Constitution as though the documents itself is a personal Ruler. This accords with our own ancient notions of the law as "The King of Kings" and the majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means.

560. The theory outlined above would, of course, be unacceptable if sovereignty must necessarily be indivisible and located in a determinate living person or persons...a really medieval concept which is not generally employed today even to describe the titular hereditary monarchs as "sovereigns", although the dictionaries may still give the derivative meaning of "sovereign" as the human ruler. Modern theories of even political sovereignty advanced by the Pluralist School e.g. Gierke, Duguit, Mc lver, Laski...look upon it as divisible and not as absolute and unlimited. Indeed, they go to the extent of practically denuding sovereignty of all its customary connotations. Duguit abandons "sovereignty" as an obsolescent doctrine and displaces it by the ruling principle of "social solidarity." Mc. Iyer thinks that the traditional concept of sovereignty, dominated too long by legalistic Austinian views, needs to be discarded. His conclusion is that the State, with which doctrine of sovereignty has been bound up, is "the association of associations", merely regulates "principles of association" or relations between individuals and associations in the interests of Society as a whole. He wrote:

At any moment the State is more the official guardian than the maker of the law. Its chief task is no uphold the rule of law, and this implies that it is itself also the subject of law, that it is bound in the system of legal values which it maintains.

(See : R.M. Mac Iyer : "The Modern State" p. 478).

Laski, while mainly accepting this rather negative approach, reminiscent of 19th century Liberalism, would accord the State a much more positive role in the interests not only of social order but also of socio-economic engineering and progress.

561. Marxists, who saw in the State and its laws and all institutions supporting an existing social order, the means of oppression and exploitation of the mass of the people, dreamt of the "withering away" of the State with its claims to 'Sovereignty'. But, the Russian Revolution was followed by the vastly increased powers of the State run for the benefit of the proletariat. Nevertheless, the Constitution of the U.S.S.R. guarantees to citizens not merely fundamental rights, including the right to work, but has a special department of the Procurator General to enforce due observance of legality, according to the law of the Constitution, by all the functionaries of State. Article 104 of their Constitution reads:

104. The Supreme Court of the U.S.S.R. is the highest judicial organ. The Supreme Court of the U.S.S.R. is charged with the supervision of the judicial activities of all the judicial organs of the U.S.S.R. and of the Union Republic within the limits established by law.

(See : A Denisov, M. Kirichenko, Soveit State-Law, p. 400).

562. It is true that legality is enforced in the U.S.S.R. not merely through the organs of the State but the vigilance of the Communist Party which consists of selected persons keeping a watch on the policy of the State. A.Y. Vyshinski, however, explained (See : Fundamental Tasks of Soviet Law 1938) that Soveit "law can no more be reduced simply to policy than cause can be identified with effect." Strict observance of "Socialist Legality", under the supremacy of the Constitution, is entrusted to the care of the State, with its three organs, the Communist Party, and the people of the U.S.S.R. (See : "The Soviet Legal System" by M/s. John N. Howard and Issac Shapiro). Although, Article 15 of the Constitution of the U.S.S.R. speaks of the "Sovereignty" and "Sovereign Rights" of the Union Republics, yet, it is made clear that these Republics function subject to the supremacy of the Constitution. Hence, the supremacy of the Constitution is a principle recognised by the Constitution of the U.S. S.R. also as operating above and limited the Sovereignties of the Socialist Republics.

563. Gierke made a wide survey and a penetrating analysis of juristic thinking, up to the end of the 19th century, on sovereignty, derived, on the one hand, from theories of the sovereignty of the Ruler, and, on the other, from theories of popular sovereignty. He observed : (See : "Natural Law and Theory of Society" by Otto Gierke translated by Ernest Barker, Vol. I, p. 153) about the approach of Kant:

Kant sketches, indeed, an ideal Constitutional State in which popular sovereignty is nominally present, but no living 'subject' of supreme authority is anywhere really to be found in this State. The 'bearers' of the different powers (legislative, executive and judicial) are supposed to govern, but each is subject to strict legal obligation appropriate to its own sphere, and over them allas the Sovereign proper, the abstract Law of Reason is finally enthroned.

He concluded (at p. 153):

The history of the theory of Constitutionalism shows how a doctrine derived from the principle of popular sovereignty could produce almost the same results as the other (and apparently opposite) system of thought which started from the principle of the sovereignty of the Ruler. In the one case, just as in the other, the inviolability of sovereignty, and the unity of the personality of the State are sacrificed in order to attain the possibility of Constitutional law which is binding even on the Sovereign.

564. A theory of a "Legal Sovereignty' must necessarily demarcate the sphere of its "legal" or proper operation as opposed to mere use of power either capriciously or divorced from human reason and natural justice. Ernest Barker 's statement of it, quoted by me in Kesavananda's case , seemed to me to satisfy this

requirement. After pointing out that Sovereignty, by which I understand one recognised by law, is limited both by its own "nature" as well as its "mode of action", it concludes : at pp. 867-868 (of SCR) : at p. 1973 of AIR:

Sovereignty moves within the circle of the legal association, and only within that circle it decides upon questions of a legal order, and only upon those questions. Moving within that circle, and deciding upon those questions, sovereignty will only make legal pronouncements, and it will make them according to regular rules or legal procedure. It is not a capricious power of doing anything in any way : it is a legal power of settling finally legal questions in a legal way." There should be no difficulty in. accepting such a theory if one can conceive of an ordered system or "Government of laws 'as opposed to a "Government of men" placed beyond limitations of this kind. At any rate, it is implicit in the very idea of a Constitution. Our Constitution not only regulates the operations of the organs of State but symbolises the unity of the Republic and contains the inspiring hopes and aspirations and cherished goals of all the efforts of the nation. It operates not merely through the law but also on the minds and feelings of the people.

565. Prof. Willis, in his "Constitutional Law of the United States" advocates the doctrine of "sovereignty of the People" for which he finds support in Abraham Lincoln's well known description of the American system as "a Government of the people, for the people, by the people" as well as in a number of pronouncements of the American Supreme Court. After considering and rejecting a whole host of theories of political philosphers and jurists, including those of Bodin, Hegel, Hooker, Hobbes, Locke, Rousseau, Fichte, Kant, Austin, Brown, Dicey, Willoughby, Duguit, and Laski, he opines : (at p. 51):

As Dewey says, the forces which determine the Government are sovereign. The effective social forces are not the Union, nor the States, nor the oligarchy of States, nor the organs of Government, nor the Constitution, nor natural law, but those forces which created these organisations and agents and institutions, and to whom they are all ultimately responsible.

According to him, the "Sovereignty of the People" which he advocates does not mean an anarchic license given to each individual or group to do as he or it pleases, but stands for the power of the people, "organised in Government to express and adjust their will either directly or through representatives". He explains, in the rest of his work, how the Government of the U.S. A., in the broader sense of all that social control which, operating through the three departments of State, has to take place in accordance with the Constitution. This concept of a nation "organised in Government" appears to me to clearly introduce the idea of a Constitution which lays down what that organisation is and how it must operate. Although Prof. Willis rejects the view that the Constitution is "Sovereign", because it can be altered by the people, he is obliged to accept something resembling it because he sees that the "people", thought of as a mere aggregation or an amorphous mass, is too nebulous. Any satisfactory theory of sovereignty must account for the power of the people to act in certain ways or to move in certain directions. A 'hydra-headed' multitude or mass of people will not know how to act or in which direction to move. It is its "Organisation" which provides that. And, its effort to organise itself and to rationalise will produce a Constitution for it which embodies its will as organised in the form of a Government. The will of the people is thus inseparable from a Constitution which enables it to be expressed and then to govern. The Constitution neither is nor can be sovereign in the sense that the people who made it cannot unmake it or change it. It only prescribes the correct mode of doing everything, including that of changing the very system of Govt. It is only in this sense that it can be "Sovereign" or "Supreme" and rule the life of a nation.

566. Another American writer, Willoughby, has put forward the view that sovereignty, as an attribute of the State, conceived of as a juristic entity apart from.. its governmental organs, cannot be legally limited. According to him, to limit it is to destroy it He says (See : Willoughby on "Fundamental Concepts of Public Law-Tagore Law Lectures, 1924, at p. 77) : "There would seem to be no more value in attaching legal rights and duties to the sovereign State than there is in predicating the attributes of goodness and justice of a Divine Being who is regarded as Himself the creator, by His own unrestrained will, of all distinctions between goodness and badness". But, this seems more a metaphysical than a realistic, more amoral Hobbes-Machiavellian than a Dante-Gandhian stance. If one's concepts of the Divine Being are to be introduced into law, one could refer to those also which see Divinity only in that order and that law which seems to pervade and govern the whole physical world and the universe. Indeed, there are judicial dicta to the effect that God Himself considered Himself bound by those elementary principles of justice whose love was planted in man by him. In Cooper v. Wandsworth Board of Works (1863) 14 C. B. (N. S.) 180 Byles, J., observed:

The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat7 And the same question was put to Eve also.

567. It is clear that no simple theory of sovereignty fits the complex facts of modern life. Every theory of today, ultimately, rests on concepts more refined than the physical or spiritual might of some ruler, in whom executive, legislative, and judicial powers coalesce to take away all legal distinctions between them. Even if that was ever the concept of sovereignty anywhere, it was certainly not that of our Constitution makers and it is not ours today. Even Willoughby, dealing with Constitutionalism (Willoughby on "Nature of the State" 1928, at p. 302) says : "the value of Constitutional Government is not that places sovereignty in the hands of the people, but that it prescribes definite ways in which this sovereign power shall be exercised by the State". Hence, he too admits that the Constitution does place some limitation on exercise of sovereign power. That seems to me to be the essence of a Constitution and the rationale of its existence.

568. Still another American writer, Orfield, in the course of his discussion (see : "The Amending of the Federal Constitution" by Lester B. Orfield 1971), of a number of concepts of sovereignty seems sometimes to almost consider Article 5 of the American Constitution, containing the constitutent power and its procedure, to be sovereign. He concludes his discussion on the subject as follows (at p. 166):

Each part of the amending body is subject to law, and may be altered or abolished. The amending body itself may be altered through the amending process, and limitations on the future amending capacity may be imposed. The amending body is an artificial sovereign deriving its being from a law in the form of Article Five. The amending groups hold office for but a short time, and may be supplanted by others in the elections in which an increasingly larger electorate participates. The theory of sovereignty, moreover, presupposes the continued orderly existence of the Government. In case of a revolution the commands of the sovereign would be disregarded, and authority could no longer be ascribed to the amending body either in fact or in law. The moral, religious, physical, and other factual limitations on the supposed sovereign are so important that it may perhaps be correct to say that they are also legal limitations, as there comes a time when law and fact shade into one another. Finally, when it is remembered that throughout all history, American as well as European, there never has been a consensus as to the meaning of sovereignty, it seems that the term should be used only with the greatest circumspection.

He rejects the concept of sovereignty of the people as too vague and meaningless. And, for the reasons given above, he rejects the theory of a sovereignty of the amending body. His final conclusion seems to be that it is better to avoid altogether entanglement in the concept of sovereignty. This view, however, overlooks the fact that lawyers need a working theory of sovereignty to be able to decide legal questions before them. As between the sovereignty of the amend ing Article and the sovereignty of the Constitution there should be little doubt that lawyers should and would prefer the sovereignty or supremacy of the whole Constitution rather than of any part of it. On the face of it, it appears more reasonable and respectable to swear allegience to the whole Constitution, as we actually do, rather than to Article 368 or to the amending powers contained in it. If there is a part of our Constitution which deserves greater devotion than any other part of it, it is certainly the preamble to our Constitution.

568 A. The American Supreme Court, in the context of the especially American conditions and needs, after leaning sometimes towards a recognition of "State Sovereignty" (See : Ware v. Hylton (1876) 3 Dall 199; Dred Scott v. Sandford (1856) 19 How 393) and at others towards a recognition of the dual system of Government which has prevailed in America (See : e.g. Gibbus v. Ogden (1824) 9 Wheat 1) has on the whole opted for the "Sovereignty of the People" which unifies the nation (See : e.g. White v. Heart (1871) 13 Wall 646; Keith v. Clark (1878) 97 US 454; National Prohibition cases (1920) 253 US 350).

569. I cannot, while I am on the subject of American conditions, resist the temptation to quote the trenchant comments of Prof. Willis on what he considers to be the dangers of the American system of Government. He wrote (at pp. 68-69).

But the greatest danger in popular sovereignty does not lie in the intellectual field, but in the moral. While our intellectual level is not as high as it ought to be, our moral level is much lower than it can safely be if our form of Government is to endure permanently. Millions of our citizens are already members of the criminal class. Millions of other citizens who are not yet members of the criminal class are in the economic world doing things just as bad as the things which members of the criminal class are doing. Millions of our people are concerned with their own selfish interests instead of the common good. Millions of our citizens are only too ready to ruin themselves and the rest of our people physically, intellectually, and morally by drugs and intoxicating liquors and vices. Our people do not seem to be much concerned with high ideals in any of the fields of human endeavour. Our people as a whole do not seem to be seriously concerned with social planning for the purpose of obtaining an ideal social order. They are more interested in rotation in office than they are in good Government. They are more interested in winning law suits than in ideal system for the administration of justice. They are more interested in making fortunes in the practice of medicine than in the prevention of disease. They are more interested in profits in the business world than they are in a well-planned system of business organisation adapted to the needs of our social order. They are more interested in individualism than they are in collective planning for the good of all.

The effects of the moral standards of our people are already manifest. As a result of our political and economic theories, there has developed a concentration of wealth unparalleled in human history. While on the whole the economic level is comparatively high in the United States, the difference between the wealth of the many and that of the few is startling. One-fourth of the families in the United States before the depression had incomes of less than $ 500 and two-thirds of the families in the United States incomes of less than 1,000. while 2 per cent of our population owned 65 per cent of the wealth. There were four men any one of whom had an income as large as five million of the poorest people in the United States. This concentration of wealth was probably one of the primary causes of the depression, and the depression has threatened our capitalistic system. This only shows the danger inherent in our political organisation.

570. If the people of an advanced country like the U.S.A., left entirely to the concept of popular sovereignty, have revealed the need for a more positive guiding or moulding role of their State so as to overcome the dangers adverted to by Prof. Willis, how much greater are the needs of a people potentially so great but actually so backward economically and educationally as ours, taken en masse, still are? Our concepts of sovereignty must accord with the needs of the people of our country. Our Constitution, which has been described by G. Austin as "the cornerstone of the Nation", was devised as a means to serve those needs. It has not only the elevating preamble, deserving the allegiance of every rational human being, but, unlike the American Constitution, the whole of Part IV of our Constitution which contains "Directive Principles of State Policy" to guide the future course of State action particularly in the legislative field. It is true that provisions of Part IV are not enforceable through the Courts against the State, but they are declared as fundamental in the governance of the country and are used to interpret the Constitution and to fix its meaning. I think, from this point of view also, we can say that the concept of the Supremacy of the Constitution is, undoubtedly, more suited to the needs of our country than any other so far put forward. It not only places before us the goals towards which the nation must march but it is meant to compel our Sovereign Republic, with its three organs of Government to proceed in certain directions. It assumes that each organ of State will discharge its trust faithfully. Can we deny it that supremacy which is the symbol and proof of the level of our civilisation?

571. I find that the doctrine of the supremacy or sovereignty of the Constitution was adopted by a Bench of seven learned Judges of this Court in Special Reference No. 1 of (sic) where Gajendragadkar, C.J., speaking for six learned Judges of this Court, said at p. 446 of SCR :

In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but, that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it. is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. ' Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense.

572. The principle of the supremacy of the Constitution was then declared by the majority of the learned Judges of this Court in Kesvananda's case to be a part of the basic structure of the Constitution. The minority opinion, while not specifically dissenting from this view, was that even what was considered by the majority to be a part of "basic structure" was alterable under Article

368. But, no Judge of this Court has so far held that, without even attempting to change what may be the basic structure of Constitution itself, by appropriate amendments, judicial power could be exercised by Parliament under Article 368 on the assumption that it was already there.

573. M. C. Setalvad, a distinguished jurist of India, said (See : "The Common Law of India" Hamlyn Lectures-12th series-1960) (at pp. 174-175):

The Constitution divides the functions of the Union into the three categories of executive, legislative and judicial functions following the pattern of the British North America Act and the Commonwealth of Australia Act. Though this division of functions is not based on the doctrine of separation of powers as in the United States yet there is a broad division of functions between the appropriate authorities so that, for example, the legislature will not be entitled to arrogate to itself the judicial function of adjudication. 'The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another', (See : Rai Saheb R.J. Kapur v. State of Punjab . This will no doubt strike one accustomed to the

established supremacy of Parliament in England as unusual. In the course of its historical development Parliament has performed and in a way still performs judicial functions. Indeed the expression 'Court of Parliament' is not unfamiliar to English lawyers. However, a differentiation of the functions of different departments is an invariable feature of all written Constitutions. The very purpose of a written Constitution is the demarcation of the powers of different departments of Government so that the exercise of their powers may be limited to their particular fields. In countries governed by a written Constitution, as India is, the supreme authority is not Parliament but the Constitution. Contrasting it with the supremacy of Parliament, Dicey has characterised it as the supremacy of the Constitution.

574. A.V. Dicey, the celebrated propounder of the doctrine of the sovereignty of Parliament, had critized Austin for frequently mixing up "legal sovereignty and "political sovereingty"(See Law of the Constitution by A.V. Dicey-10th Edn. p. 72), He contrasted the British principle of "parliamentary sovereignty''with what was described by him the "Supremacy of the Constitution" in America. He observed (at p. 165).

But, if their notions were conceptions derived from English law, the great statesman of America gave to old ideas a perfectly new expansion and for the first time in the history of the world formed a Constitution which should in strictness be 'the law of the land', and in so doing created modern federalism. For the essential characteristics of federalism-the supremacy of the Constitution-the distribution of powers-the authority of the judiciary -reappear, though no doubt with,modifications, in every true federal state.

He said (at p. 144):

A federal state derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence every power, executive, legislative, or judicial, whether it belongs to the nation or to the individual States, is subordinate to and controlled by the Constitution.

He wrote about the American Supreme Court (at p. 159):

Of the nature and position of the Supreme Court itself itself this much alone need for our present purpose be noted. The court drives its existence from the Constitution, and stands therefore on an equality with the President and with Congress, the members thereof (in common with every Judge of the Federal Judiciary) hold their places during good behavior, at salaries which cannot be diminished during a judge's tenure of office.

575. The theory of the Supremacy of the Constitution is thus not a new one at all. It is inherent in the very concept of "the auguster thing" which lies behind Parliament or king and is sought to be embodied in the Constitution of a country. The Judges, who are vested with the authority and charged with the duty to uphold the Constitution, do so as the mouthpieces of what has been called the "Real will" of the people themselves by political philosophers such as Bosanquet. That, as I have indicated earlier, is the theory underlying the system of judicial review. Such a system may delay changes but should not, I think, speaking entirely for myself deny or defeat the right of the people to bring about any change, whether basic or not, in the Constitution. Indeed, in Kesavananda's case , I

indicated that I thought that the most proper and appropriate function of the amending power in a Constitution, which is also a part of the Constitution, and, indeed, its most potent part-was that of making basic changes so as to avert Constitutional break downs and revolutions if possible. However, we are precluded from acting upon such a broad view of amending power in this case as we are bound by the majority opinion in Kesvananda's case (supra) that implied limitations of "a basic structure", operating from even outside the language of Article 368, as it stood before the 24th amendment, restrict its scope. These limitations must however, be related to provisions of the Constitution.

576. It has not been argued before us that the introduction by the 24th amendment of the new Clause (1) in Article 368, containing the "constituent power", itself amplifies or increases the contents or changes the character of the power in Article 368 by making it a composite power so as to include a new type of judicial or quasi-judicial power also within its fold now. It is evident from the judgments of learned Judges of this Court in Golaknath's case that possible distinctions between amending power and "constituent power" and "Sovereign power" figured prominently in arguments in that case. Wanchoo, J., in his minority opinion said that it was not necessary, for the purpose of that case, to decide whether the am ending power was as wide as the "sovereign power of the Constituent Assembly which had framed our Constitution. After all the discussion that had taken place then, came the 24th amendment. It does not use the words "sovereignty" or "sovereign power". I presume that the words "constituent power" were advisedly used in it. so as to clarify the position and not to put in or to include anything beyond Constitution making power in Article 368.

577. The "constituent power" is still bound by the exclusively prescribed procedure to "amend by way of addition, variation, or repeal" any provision of the Constitution. It is entirely a law making procedure elaborately set out in Clause (2). In fact, Article 368 contains so much of the fundamental law making or legislative procedure that five judges of this Court, led by Subba Rao, C.J. opined in Golaknath's case , that it was confined to procedure and did not contain at all the substantive power to amend. Clause (1) of Article 368, introduced by the 24th amendment, was, apparently, meant to remove this objection and to do no more. It could not be intended to pour some new amalgam of executive and judicial or quasi-judicial substantive powers into it also by some implication so its to do away with the very need for such an elaborate and carefully drawn up Constitution such as ours. The absence of any quasi-judicial procedure, from the comprehensively framed procedural provisions of Article 368, seems extremely significant. It indicates that it was the clear intention of Constitution-makers that no judicial or quasi-judicial function could be performed by Parliament whilst operating in the special Constituent field of law making. An omission to provide any quasi-judicial procedure in Article 368, which, apparently, furnishes a self-contained code, means that no such power was meant to be included here at all. Proper exercise of judicial power is inseparable from appropriate procedure.

578. Learned Counsel supporting the 39th Amendment tried to find the meaning of "constituent power" in theoretical speculations about the meaning of "the sovereignty of the people", on the one hand, and the sovereignty of the medieval monarch on the other, instead of looking to the legislature history of the "constituent power". I have, therefore, also referred to some of these theories and practices from ancient times so as to be able to indicate the precise significance or relevance of various concepts and decisions placed before us. These theories and practices could have only an indirect bearing on the meaning of the term "constituent power" in Article 368. They are more germane to a statement of a correct theory of sovereignty which underlies what has been called the "basic structure" of our Constitution.

579. There are scattered dicta in the judgments of the Court speaking of the "sovereignty of the people" which, in my opinion, can only be related to the political sovereignty of the people recognised by the preamble to our Constitution where the people are described as the Constitution-makers who gave the Constitution unto themselves. This, however, does not, in my opinion, mean that the people retained unto themselves any residue of legal sovereignty. They did not prescribe, apart from dividing the exercise of sovereign power roughly between the three organs of the Republic, each with its own modus operandi, any other or direct method, such as Initiative or Referendum, for exercising their politically sovereign power. The view I have tried to put forward in the foregoing pages is that the people entrusted to the three organs of the Sovereign Democratic Republic they constituted the exercise of three aspects of sovereign power on behalf of the people. This seems to me to be the only way of reconciling the idea of a sovereign people, in the political sense, and the sovereignty of the Republic, represented by a legally supreme Constitution, so that the "sovereign" powers of each of the three organs of the Republic had to be exercised in conformity with the mandates, both positive and negative, express and implied, of the Constitution. I would prefer to describe this concept as one of the "supremacy of the Constitution" in stead of "sovereignty" of the Constitution because of the theoretical, speculative, and "emotive" clouds which have gathered around the term "sovereignty".

607. Cases were also cited where rights having been altered during the pendency of proceedings, Courts had to give effect to the rights as altered, and judgments already given on the strength of the previous law had ceased to have a binding force as res judicata between parties or had to be set aside where appeals against them were pending. These were : State of U.P. v. Raja Anand Brahma Shah ; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality : Janapada Sabha. Chhindwara v. The Central Provinces Syndicate Ltd. : Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. : State of Tamil Nadu v. M.R. Gounder, ; Amarjit Kaur v. Pritam Singh : Qudrat Ullah v. Municipal Board,

Bareilly .

608. Cases were also cited of the exercise of Constitutional power of amendment, by placing Acts in the 9th Schedule, under the provisions of Article 31-B of the Constitution, such as Jagannath v. Authorised Officer. Land Reforms so that Acts so included in the 9th Schedule were immune from attack on the ground of alleged violation of any fundamental rights. It is not necessary to cite them as this is now a well recognised Constitutional device whose validity has been upheld by this Court in Kesavananda Bharti's case .

609. Our attention was especially invited to passages from Udai Ram Sharma v. Union of India , where it was said (at page 4):

In our opinion no useful purpose will be served by referring to the clear demarcation between the judicial powers and legislative Powers in America and attempt to engraft the said principle in the working of our Constitution. This development of the law, as pointed out in A.K. Gopalan v. State, was due to historical reasons.

610. After that. the following pass age from the judgment of Das, J., in A.K. Gopalan's case was Quoted (at page 55):

The Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to declare any law unConstitutional on the ground of its not being in "due process of law," ...It is thus that the Supreme Court established its own supremacy over the executive and the Congress. In India the position of the Judiciary is some where in between the Courts in England and the United States. While in the main leaving our Parliament and the State Legislatures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legis lature certain specified limitations Our Constitution, unlike the English Constitution, recognises the Court's supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself. Within this restricted field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have transgressed the Constitutional limitations.

611. In Udai Ram Sharma's case the following passage from Willoughby's Constitution of the United States. Second Edition, Vol. 3, was also cited:

If the legislature would prescribe a different rule for the future from that which the Courts enforce, it must be done by statute, and cannot be done by a mandate to the Courts which leaves the law unchanged, but seeks to compel the Courts to construe and apply it not according to the judicial, but according to the legislative judgment If the legislature cannot thus indirectly control the action of the Courts. by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry.

612. Willoughby's statement of law in the United States of America showing that retroactive legislation which does not impair vested or substantial rights or Constitutional prohibitions, is permissible and his conclusion, relying on Cooley's "Constitutional Limitations", was also quoted:

The legislature does, or may, prescribe the rules under which the judicial power is exercised by the Courts; and in doing so it may dispense with any of those formalities which are not essential to the jurisdiction of the Court; and whatever it may dispense with by statute anterior to the proceedings, we believe it may also dispense with by statute after the proceedings have been taken. if the Court has failed to observe any of those formalities. But it would not be competent for the legislature to authorize a Court to proceed and adjudicate upon the rights of parties, without giving them an opportunity to be heard before it and, for the same reason it would be incompetent for it, by retrospective legislation, to make valid any proceedings which had been had in the Courts, but which were void for want of jurisdiction over the parties.

613. In Udai Ram Sharma's case (supra) an argument, based on some observations in B.C. Ghose v. King Emperor was that the provisions of an amending Act amounted

to passing a decree. But, this Court repelled this argument reviving on principles laid down in Q.v. Burah (1878) 5 Ind App 178 (supra):

If what has been done is legislation, within the general scope of the affirmative words which give the power. and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.

614. A case strongly relied upon by learned Counsel supporting the validity of Article 329-A(4) was : Kanta Kathuria v. Manak Chand Surana . In this case, decided by five Judges of this Court, there was unanimity on the conclusion that the State Legislature had power to retrospectively remove the disqualification of a candidate. The following Quotation from the judgment (at page 851 of SCR) shows the reasoning adopted:

Mr. Chagla. learned Counsel for the respondent, contends that the Rajasthan State Legislature was not competent to 'declare retrospectively' under Article 191(1)(a) of the Constitution. It seems to us that there is no force in this contention-It has been held in numerous cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, no express restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the context, any restriction, Practice of the British Parliament does not oblige us to place any implied restriction. We notice that the British Parliament in one case validated the election : (Erskine May's Treatise on the Law, Privileges Proceedings & Usage of Parliament-Seventeenth (1964) Edition)

"After the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943. which entitled them to a small fee in respect of attendance at a Tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Spring-burn Elections (Validation) Bill was introduced to validate the irregular elections (H. C Deb (1945-46) 414, c. 564-6). See also H. C 3 (1945-46); ibid, 71 (1945-46) and ibid. 92 (1945-46).

We have also noticed two earlier instances of retrospective legislation, e.g. The House of Commons (Disqualification) Act, 1813 (Halsbury Statutes of England P. 467) and : Section 2 of the Re-election of Ministers Act, 1919 (ibid. p. 515).

Great stress was laid on the word 'declared' in Article 19(1)(a), but we are unable to imply any limitation on the powers of the Legislature from this word. Declaration can be made effective as from an earlier date.

The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the. State Legislature.

615. Another case on which a great deal of reliance was placed by Mr. A.K. Sen. was the case of the validation of the elections of John Clarke George, Esquire, and Sir Roland Jennings. Knight, 1955 Law Reports Statutes 4 Eliz 2 by the British Parliament. Here, the two gentle men named above were "discharged. freed and indemnified from all penal consequences whatsoever incurred by them respectively by sitting or voting as Members of the Commons House of Parliament while holding their said offices." It was also declared that they "shall be deemed not to have been incapable of being elected members of the Commons House of Parliament, or to have been or to be incapable of sitting or voting as members thereof, by reason only of having at any time before the passing of this Act held office:

(a) in the case of the said John Clarke George, as Director appointed by the Minister of Works of Scottish Slate Industries Limited,

(b) in the case of the said Sir Roland Jennings, as Approved Auditor appointed under the Industrial and Provident Societies Act. 1893, and the Friendly Societies Act, 1896.

616. Learned Counsel for the election petitioner replied that it is noticeable that no English case could be cited where any attempt was made by the British Parliament to circumvent Section 107 of the Representation of the People Act. 1949, which lays down:

Section 107. Method of questioning Parliamentary election.

(1) No parliamentary election and no return of Parliament shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as parliamentary election petition) presented in accordance with this Part of this Act.

(2) A petition complaining of no return shall be deemed to be a parliamentary election petition and the High Court may make such order thereon as they think expedient for compelling a return to be made or may allow the petition to be heard by an election court as provided with respect to ordinary election petitions.

617. He also submitted that, in none of the cases of validation, was any election dispute shown to be pending. No judgment was actually set aside in contravention of the binding Constitutionally prescribed procedure to decide such disputes. He submitted that, in the case of an election to a Parliamentary seat in this country, this could be done by Parliament itself only after first repealing the application of the 1951 Act and amending Article 329(b) in such a way as to vest the power in itself to decide the dispute.

618. Learned Counsel, for the election petitioner relied upon the following statement in the American Jurisprudence, 2nd Edn. Vol. 46, at page 318:

The general rule is that the legislature may not destroy, annual, set aside, vacate, reserve, modify, or impair the final judgment of a Court of competent jurisdiction, so as to take away private rights which have be-come vested by the judgment. A statute attempting to do so has been held unConstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the Constitutional guaranty of due process of law. The legislature is not only prohibited from reopening cases previously decided by the Courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an Act affecting remedies does not alter the rule.

619. On the other hand, learned Counsel supporting the validity of Article 329-A(4) relied on the following passage:

It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal

They also pointed out:

With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid" even though it renders ineffective a, judgment concerning a public right. Even after a public right has been established by the judgment of the Court, it may be annulled by subsequent legislation.

620. It is contended that the election of a candidate is the result of the exercise of their rights of voting by the electorate. An election results from public action and produces a "public right" inasmuch as the electorate and the public become interested parties acquiring the right to be represented by the elected candidate. The right to challenge that election is a statutory right. What the statute gives can be taken away by statute. The grounds for challenging the election could also be altered. No one, it was urged, could be heard to say that he had any vested or inherent right to challenge an election. It was contended that once the applicability of all law previous to the 39th amendment to the class dealt with by Article 329-A(4) was removed retrospectively, the resulting legislative declaration followed automatically even if it had not been inserted. Its inclusion was a superfluity. Article 329-A(4) was said to be merely incidental and consequential to what was done by earlier Clauses (1) to (3). It is difficult to see how Article 329-A(4) which relates to what was past could be incidental or consequential to what was intended to be done in future. Moreover, more serious difficulties, dealt with below, are found here than those which could arise in ordinary cases of retroactive validation.

621. Learned Counsel for the election petitioner relied on Don John Francis Douglas Liyanage v. The Queen (1967) 1 AC 259 where the Privy Council, considered the validity of the Criminal Law Special Amendment Act of 1962, passed by the Parliament of Ceylon, which had purported to legalise ex post facto the detention of persons for having committed offences against the State, by widening the class of offences for which trial, without jury, by nominated judges could be ordered. The scope of the offence of waging war against the Queen was widened and new powers to deal with offenders were given and additional penalties were prescribed. It was held that, although, no fundamental principles of justice could be said to have been violated by the Act, yet, the Act of 1962 and an amending Act of 1965, were invalid on the ground summarised in the head-note as follows (at p. 260):

That the Acts, directed as they were to the trial of particular prisoners charged with particular offences on a particular occasion, involved a usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while not in terms vesting judicial functions in the judiciary, manifested an intention to secure in the judiciary a freedom from political, legislative and executive control, and, in effect, left untouched the judicial system established by the Charter of Justice, 1833. The silence of the Constitution as to the vesting of judicial power was consistent with its remaining where it was an inconsistent with any intention that it should pass to or be shared by the executive or the legislature. The Acts were accordingly ultra vires and void, and the convictions could not stand.

622. If the constituent bodies, taken separately or together, could be legally sovereign, in the same way as the British Parliament is, the Constitutional validity of no amendment could be called in question before us. But, as it is well established that it is the Constitution and not the constituent power which is supreme here, in the sense that the Constitutionality of the Constitution cannot be called in question before us, but the exercise of the constituent power can be we have to judge the validity of exercise of constituent power by testing it on the anvil of Constitutional provisions. According to the majority view in Kesavananda's case (supra), we can find the test primarily in the Preamble to our Constitution.

623. A point emphasized by J.C, Gray (See : "Nature & Sources of Law" p. 96) is that unless and until Courts have declared and recognised a law as enforceable it is not law at all. Kelsen (See : "General Theory of Law & State" p. 150) finds Gray's views to be extreme. Courts, however, have to test the legality of laws, whether purporting to be ordinary or Constitutional, by the norms laid down in the Constitution. This follows from the Supremacy of the Constitution. I mention this here in answer to one of the questions set out much earlier : Does the "basic structure" of the Constitution test only the validity of a Constitutional amendment or also ordinary laws? I think it does both because ordinary law making itself cannot go beyond the range of constituent power. At this stage, ' we are only concerned with a purported Constitutional amendment. According to the majority view in Kesavananda Bharati's case the preamble furnishes the yard-stick to be applied even to Constitutional amendments.

624. Learned Counsel for the election petitioner has strongly relied upon the very first purpose of the Constitution stated in the preamble to be Justice (with a capital "J") which includes "political justice". His contention is that, if a majority party is to virtually act as the judge in an election dispute between itself and minority parties whose cause, according to the learned Counsel, the election petitioner represents, it would be a plain denial of "political" justice. I do not know why this question should be termed as one of "political justice" and not of plain and simple elementary justice except that the contending parties represent political causes which are, for purposes of plain and simple justice with which we are really concerned, irrelevant. We are not asked to judge a political issue directly as to who should be the Prime Minister of this country. We are only asked to hold that even a Constitutional amendment, when made by Members of a majority party to enforce their own views of what is politically and legally right, as against the views, on these matters, of minority parties, when the representatives of the minority parties allege a misuse of Constitutional powers by a deviation from a Constitutionally laid down purpose, such a legal question of fact and law should be capable of trial and decision by an independent authority on such exclusively legal grounds as may be open. That is the simple principle on which learned Counsel for the election petitioner rests his case, irrespective of the rights and wrongs or the merits of his client's case and, I have found it impossible to decide it, as I have decided it against the election petitioner, without going into facts and merits of the appeals-for the submission that our jurisdiction to try this case on merits cannot be taken away without injury to the basic postulates of the rule of law and of justice within a politically democratic Constitutional structure. I do not think that we can, consistently with the objects of justice, including what is claimed as "political justice", which are parts of what is called the "basic structure", deny the right to claim and adjudication from this Court on exclusively legal issues (not political ones) between the majority party and the minority groups of parties, however, large and legally right the majority party may be and however small and legally wrong the minorities groups or parties may be. Can the legal rights and wrongs, on such an issue, be resolved, in accordance with the objects of the Preamble, anywhere other than this Court now? I think that it would be a very dangerous precedent to lay down that they can be and need be determined nowhere at all. That is what acceptance of total validity of Article 329-A(4) may mean if it bars our jurisdiction to hear and decide such a case on merits.

625. What was sought to be done by the Constitutional amendment may be politically very justifiable. The question before us, however, is whether it is also legally justifiable. Here, we are back again in the realm of basic principles of justice. We are not to decide a political question here at all. But, we have to decide legal questions even if they have, as many legal issues have, political consequences and repercussions which we cannot entirely ignore. Perhaps we have to go back to Marbury v. Madison (1803) 1 Cranch 137 (supra) where Chief Justice Marshal said (at p. 162):

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of Government is to afford that protection. In Great Britain the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d. vol. of his Commentaries, p. 23 Blackstone states two cases in which a remedy is afforded by mere operation of law. 'In all other cases', he says it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded.

626. It is true that the right which the election petitioner claims is a purely statutory right. The right to come to this Court under Section 116-A of the Act of 1951 is also a creature of statute and can be taken away retrospectively. But, where this taking away also involves the taking away of the right to be heard by this Court on a grievance, whether justifiable or not, that a minority party is being oppressed by the majority, can we deny the spokesman of the minority even a right to be heard on merits? Such an issue is Constitutional. Confession of our inability to resolve it judicially would be, according to learned Counsel for the election petitioner, a denial of "political justice". This issue is extrinsic so far as the Act of 1951 is concerned. The election petitioner has complained of the taking away of his right to be heard with a view to depriving him of "political" justice with an ulterior object and political motivation. I have dealt with the merits of the case to show that, from the legal aspect, his grievance, on the merits of his case, is misconceived. He has no vested right under a palpably erroneous judgment which was the subject-matter of the two appeals to this Court. Nevertheless, this could only be demonstrated after we had gone into the merits of the case and rendered our decision on the issues in accordance with the law in the 1951 Act. Thus, what is involved is the right of the election petitioner to be heard on merits and the power of this Court to look into the merits of the case in order to determine whether the election-petitioner's grievances could have any real legal foundations. I think that this is a basic consideration which must compel us,. in the light of the principles laid down by us in Kesavananda Bharati's case , to

hold that we must look into his grievances and determine, for ourselves, where his case stood on the law before it was amended. Our jurisdiction, at any rate, cannot be barred without creating the impression that what the election petitioner calls "political justice" is being denied to him.

627. The question which arises now is : Was Clause (4) of 329-A, read with Clauses (5) and (6), really meant to bar our jurisdiction to consider the grievances of the petitioner and to decide them, or, can they be so interpreted as to preserve this Court's jurisdiction?

628. Broadly speaking, the election petitioner has two heads of grievance : firstly, that the election of the original respondent is vitiated by corrupt practices which, as I have indicated, after considering the case set up by him and the evidence tendered and the law applicable, could not possibly succeed even under the law as it stood before the amendment, and, secondly, that our very jurisdiction to go into these grievances is sought to be debarred by Clauses (4), (5) and (6) of Article 329-A(4) with the political object of stifling opposition, and, therefore, according to the election petitioner, we must declare Clause (4) and the connected Clauses (5) and (6) of Article.329-A to be invalid. Although, the 1st set of complaints is based upon the provisions of the Act of 1951, the second set arises because of impugned clauses of the 39th Amendment. For the second set of grievances, the action complained of is that of the State itself acting through its law making organs. It is because of this interest of the Union of India, acting in its law making capacity, that we have heard the Attorney General and the Solicitor General. Although, the second set of grounds may arise as a result of the 1st set, yet, they are different. Our jurisdiction to consider these different grounds of complaint does not ordinarily arise at all in the exercise of our jurisdiction under Section 116-A of the Act of 1951. It is for this reason, that the election petitioner had filed a separate Writ Petition in the High Court to challenge an amendment of the Act. But, we decided to hear arguments on Constitutional issues also without a separate proceeding. The causes of action arising out of the amendments have become attached if I may so put it, to the appeals under Section 116-A of the Act because we could not, under the law, hear the appeals unless these obstacles, if any, were overcome.

629. Indeed, so far as the original respondent is concerned, the effect of Clauses (4), (5) and (6) of Article 329-A would be, if we were to hold that they bar our jurisdiction to go into the merits of the appeals under Section 116-A of the Act, that her grievance against the judgment under appeal also could not be gone into or dealt with. In other words, the original respondent Would also be denied an opportunity of asserting her rights under the 1951 Act and of vindicating her stand in the case by showing that there was really no sustainable ground for the findings given by the learned Judge of the High Court against her. We would, therefore, be pre-. vented from doing justice to her case as well if we were to accept the contention that the 39tb Amendment bars our jurisdiction to hear the appeals under Section 116-A of the Act on merits. The total effect would be that justice would appear to be defeated even if, in fact, it is not so as a result of the alleged bar to our jurisdiction if it- were held to be there. Could it be the intention of Parliament that justice should appear to be defeated? I think not.

630. It was also contended before us that we should not go at all into the merits of the case before us as it was a political matter. In other words, the "political question" doctrine was invoked in aid of the submission that we should voluntarily abstain from deciding a question of a "political nature". It is true that the "political question doctrine" has been sometimes invoked, in the past, by the American Supreme Court to abstain from taking a decision. In answer to this argument, learned Counsel for the election petitioner cited before us from comments on the Constitution of the United States of America (Analysis and Interpretation by the Congressional Research Service-1973 Edn. p. 665) that the "political question" doctrine is the result of a "prudential" attitude Courts adopt when they find that their judgments may not be enforced. It was described there as "a way of avoiding a principled decision damaging to the. Court or an expedient decision damaging to the principle". It was also pointed out there that this doctrine has been rationalized and considerably narrowed down by the American Supreme Court in Baker v. Carr (1962) 369 US 186 where it was explained that "non-justifiability of a political question is primarily function of separation of powers." It really means that there are matters about which declarations made or certificates granted by the executive wing of Government would be treated as conclusive so that Courts will not go behind them. It was also said there:

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in Constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

631. Learned Counsel for the election petitioner also relied upon H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India where this Court said : at p. 75 of SCR : at p.563 of AIR:

The functions of the State are classified as legislative, judicial and executive; the executive function is the residue which does not fall within the other two functions. Constitutional mechanism in a democratic policy does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts : Rai Sahib Ram Jawaya Kapur v. State of Punjab ; Jayantilal

Amritlal Shodhan v, F.N. Rana ; and Halsbury's Laws

of England 3rd Edn. Vol. 7, Article 409, at p. 192.

632. Learned Solicitor General also contended that we were passing through critical times when a state of Emergency had been declared. He submitted that the decision of the constituent authorities, in excluding a particular case from the jurisdiction of this Court, should be treated as an exercise of very special power under very unusual conditions in which internal and external dangers, with which the country was surrounded, required that the position of the Prime Minister should be declared unequivocally unassailable so that the need for further examination of the question of her election to Parliament may not be raised anywhere else. This seems to be another form in which "political question" argument could be and was addressed to us. Undoubtedly, Clause (4) of Article 329A could be said to have a political objective, in the context in which it was introduced, and we could perhaps take judicial notice of this contexts Even if it was possible to go beyond the statement of objects and reasons and to hold that Clause (4) of Article 329A is there essentially for demonstrating the strong position of the Government and of the Prime Minister of this country to all inside and outside the country so as to inspire the necessary confidence in and give the necessary political and legal strength to the Government to enable it to go forward boldly to deal with internal economic and law order problems and international questions. Yet, I fail to see why this could make it necessary to exclude the jurisdiction of this Court so as to prevent it from considering a case which would have been over much sooner if we had not been confronted with difficulties, at the very outset, in examining the merits of the case. Speaking for myself, I fail to see what danger to the country could arise or how national interests could be jeopardised by a consideration and a decision by this Court of such a good case as I find that the Prime Minister of this country had on facts and law, Nevertheless I am prepared to concede that there may be ana was some very useful political objective to be served by demonstrating the strength and ability of, the Government to face the difficulties with which it had been confronted. If that be so. we can certainly say that Clause (4) of Article 329A had a political objective and utility which has been served. And, if that was the real object behind its enactment, it could not be really to injure the interests of minority political parties or groups which is what is contended for on behalf of the election petitioner. I think that the context and the political considerations placed before us could be relevant in understanding the real meaning of Clause (4) of Article 329A of the Constitution.

633. It is a well established canon of interpretation that, out of two possible interpretations of a provision, one which prevents it from becoming unConstitutional should be preferred if this is possible-ut res magis valeat quam pereat. It is true that the deeming provision seems to stand in the way of our examination of the merits of the case even though there is no direct provision taking away our jurisdiction to consider the merits of the appeals before us. It has, how ever, been repeatedly laid down that a deeming provision introducing a legal fiction must be confined to the context of it and cannot be given a larger effect : (See Radha Kishan v. Durga Prasad AIR 1940 PC 167). In Bengal Immunity Co. Ltd. v. the State of Bihar it was held by this Court that a legal fiction is created for some definite purposes and should not be extended beyond its legitimate field determined by its context. The same view has been expressed by this Court in other cases; C.I.T. Bombay v. James Anderson C. I. T., Madras v. Express Newspapers Ltd., Madras ; Sri Jagadguru Kari Basava Rajendraswami of Gavimutt v. Commissioner of Hindu Religious Charitable Endowments, Hyderabad .

634. In Ex-Parte Walton, In Re : Levy (1881) 17 Ch D. 746 James LJ said:

When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, then the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to?" In other words, we have to examine the context and the purpose of the legal fiction and confine its effects to these.

635. If the purpose of the Clause (4) of Article 329A was purely to meet the political needs of the country and was only part ly revealed by the policy underlying the statement of objects and reasons it seems possible to contend that it was not intended at all to oust the jurisdiction of the Court, Hence, Article 329A Clause (5) will not, so understood, bar the jurisdiction of the Court to hear and decide the appeals when it says that the appeal shall be disposed of in conformity with the provisions of Clause (4).

636. In the circumstances of this case, it would seem that conformity with the declaration embodied in Article 329A Clause (4) is possible, if we confine the meaning and effect of the deeming provision to what was needed only for the declaration to be given at the end of Clause (4) by the constituent bodies, with a political object, and not for the purposes of affecting our jurisdiction which determines legal effects of what is sought to be done. Of course, the more natural interpretation would appear to be that the deeming provision should apply for "all purposes" including those for consideration of the appeals before us. But if it is not possible to decide those appeals without giving a different meaning to the deeming provision, on which the final declaration in Clause (4) rests, and Clause (5) leaves us free to decide how we could conform with Clause (4). need our jurisdiction to decide factual and legal issues judicially be said to be affected? If the fiction was only a. logical step in the process of the declaration to be made by constituent authorities but not of ours, it would only attach to the declaration contained at the end of Clause (4). Perhaps it could be argued, by applying the doctrine of "reading down", that Clause (4) was not intended to oust the jurisdiction of this Court altogether to try the case. No such attempts at reading it down have, however, been made by learned Counsel supporting the validity of Article 329A(4). It is not unlikely that Article 329A(4) was based on the misapprehension that the High Court's judgment may be legally correct or that there was a possibility, even for a case so ill founded in fact and in law as the one put forward on behalf of the election-petitioner, to succeed in this Court if it had succeeded in the High Court. We cannot indulge in guess work on these matters. In any case, no useful purpose will be served now by our declaring anything beyond that Clause 329A(4) does not so operate as to bar the jurisdiction of this Court to go into and determine the merits of the appeals before us by applying the Act of 1951. Even if we were to consider matters of expediency and national interest, as we should in appropriate cases, it does not appear to me to be either expedient or in conformity with national interests to leave the matter in doubt whether the judgment under appeal before us could or could not legally stand on its own legs under the unamended law,

637. For the reasons given above. I declare that Article 329A(4) does not stand in the way of the consideration of the appeals before us on merits under the Act of 1951 or the validity of the amendments of the Act. On a consideration of the merits of Appeals Nos. 887 and 909 of 1975, I have come to the conclusion, as indicated above, that Appeal No. 887 must be allowed and the Cross Appeal No. 909 of 1975 must fail. The result is that the judgment and orders passed by the learned Judge of the Allahabad High Court on the election case are set aside, and, in such conformity with Article 329A Clause (4) as is possible for us, I also declare the judgment and the fundings contained in it to be void and of no effect whatsoever. It is not necessary for me to add that the order of the learned Judge, holding the original respondent disqualified from occupying her office, disappears ipso facto and it neither has nor will be deemed over to have had any legal effect whatsoever. In the circumstances of the case, I think the parties should bear their own costs throughout.

Y.V. Chandrachud, J.

638. The Election Petition out of which these appeals arise involved the question of the validity of the election of Smt. Indira Nehru Gandhi to the Lok Sabha. In the General Parliamentary Elections of 1971, she was declared as the successful candidate from the Rae Bareli constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes over her nearest rival, Shri Raj Narain.

639. Shri Raj Narain, who was sponsored by the Samyukta Socialist Party, filed an election petition under Section 80 read with Section 100 of the Representation of the People Act, 1951, to challenge the election of the successful candidate. Originally, the challenge was founded on numerous grounds but during the trial of the petition in the High Court of Allahabad, the challenge was limited to seven grounds.

640. A learned Single Judge of the High Court, M.L. Sinha, J., upheld the challenge on two grounds, rejecting the other grounds of challenge. That explains the cross-appeals.

641. The High Court held that the successful candidate was guilty of having committed two corrupt practices within the meaning of Section 123(7) of the Representation of the People Act : Firstly, she obtained the assistance of the Gazetted Officers of the Government of Uttar Pradesh for furthering her election prospects; and secondly, she obtained the assistance of Shri Yashpal Kapoor, a gazetted officer in the Government of India holding the post of Officer on Special Duty in the Prime Minister's Secretariat, for furthering the same purpose. Acting under Section 8-A of the Act the learned Judge declared that the successful candidate would stand disqualified for a period of six years from June 12, 1975 being the date of the judgment. Aggrieved by this part of the judgment, Smt. Indira Gandhi has filed appeal No. 887 of 1975.