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TMI Blog1975 (11) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... 123(7) of the Representation of the People Act, 1951 hereinafter referred to as the 1951 Act by having obtained the assistance of Yashpal Kapur a gazetted officer for the furtherance of her election prospects. The High Court held the appellant to be disqualified for a period of six years from the date of 2. It should be stated here that this judgment disposes of both the appeals. Under directions of this Court the original record of the High Court was called for. The appeal filed by the respondent with regard to issues Nos. 2, 4, 6, 7 and 9 formed the subject-matter of cross objections in Civil Appeal No. 909 of 1975. The cross objections are the same which form grounds of appeal filed by the respondent in the High Court at Allahabad against an order of dismissal of Civil Misc. Writ. No. 3761 of 1975 filed in the High Court at Allahabad. 3. The Constitution (Thirty-ninth Amendment) Act, 1975 contains three principal features. First, Article 71 has been substituted by a new Article 71. The new Article 71 states that subject to the provisions of the Constitution, Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election to be void, such election continue to be valid in all respect and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. 9. The fifth clause states that any appeal or cross appeal against any such order of any court as is referred to in clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of clause (4). 10. The sixth clause states that the provisions of this article shall have effect notwithstanding anything contained in the Constitution. 11. The third feature in the Constitution (Thirty-ninth Amendment) Act is that in the Ninth Schedule to the Constitution after Entry 86 and before the explanation several Entries Nos. 87 to 124 inclusive are inserted. The Representation of the People Act, 1951, the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd judicial review. The fourth clause makes the provisions of Part VI of the Representation of the People Act inapplicable to the election of the Prime Minister and the Speaker. 20. Fifth, clause (4) destroys not only judicial review but also separation of power. The order of the High Court declaring the election to be void is declared valid (sie void). The cancellation of the judgment is denial of political justice which is the basic structure of the Constitution. 21. The second ground is that the condition of the House which passed the Constitution (Thirty-ninth Amendment) Act is illegal. It is said that a number of members of Parliament of the two Houses were detained by executive order after June 26, 1975. These persons were not supplied any grounds of detention or given any opportunity of making a representation against their detention. Unless the President convenes a session of the full Parliament by giving to all members thereof an opportunity to attend the session and exercise their right of speech and vote, the convening of the session will suffer from illegality and unconstitutionality and cannot be regarded as a session of the two Houses of Parliament. The mere fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive spheres. The jurisdiction of this Court and of High Courts under our Constitution is dealt with by articles under the heads of the Union Judiciary and the State Judiciary. Under Article 136 any tribunal or court is amenable to the jurisdiction of this Court. The corollary drawn from this is that if under clause (4) of Article 329A of the Thirty-ninth Amendment the power of judicial review is taken away it amounts to de 25. In England formerly Parliament used to hear election disputes. In 1870 Parliament found that because of political factions it would be better to leave the task of deciding controverted elections to judges. Parliament delegated its power of deciding controverted elections to courts. Under the English law the courts hear and make a report to Parliament. In America each House shall be the judge of the elections, returns and qualifications of its own members. That is Article 1, Section 5 of the American Constitution. In Australia any question of a disputed election to either House shall be determined by the House in which the question arises. Under the German Federal Republic Constitution the Legislature decides whether a person has lost his seat. Against the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Governor is a political question and is not justifiable. In Truman H. Newberry v. United States of America the American Supreme Court held that the manner of elections can be controlled. In David S. Barry v. United States of America Ex. Rel. Thomas W. Cunninggham the decision of the American Supreme Court in Charles W. Baker v. Joe C. Carr was referred to in order to find out as to what aspects of elections would be justiciable and not a political question. In Baker v. Carr (supra) the delimitation of constituencies was held to be a justiciable issue. In Julian Bond v. James 'Sloppy' Floyd the exclusion of an elected representative because of his statement attacking the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction of the Legislature to find out whether a member was sincere in 30. The American decisions show that if the House claims additional power to disqualify a member on the ground other than those stated in the Constitution judicial review against disqualification would be available. In Bond's case (supra) disqualification was on an unconstitutional ground that his statement on Vietnam policy was a matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s system, the legal order. A norm belongs to a certain legal order, because it is created by an organ of the legal community constituted by this order. Creation of law is application of law. The creation of a legal norm is normally an application of the higher norm, regulating its creation. The application of higher norm is the creation of lower norm determined by the higher norm. A judicial decision is an act by which a general norm, a statute, is applied but at the same time an individual norm is created binding one or both parties to the conflict. Legislation is creation of law. Taking it into account is applicable of law. The higher norm may determine the organ and the procedure by which 34. The general norm which attaches abstractly determined consequences, has to be applied to concrete cases in order that the sanction determined in abstract may be ordered and executed in concrete. The two essential elements of judicial functions are to apply a pre-existing general norm in which a certain consequence is attached to certain conditions. The existence of the concrete conditions in connection with the concrete consequence are what may be called individualization of the general an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction between a disqualification decreed by the House on racial grounds and one alleged to violate the right of free speech. The court concluded that Bond was deprived of his constitutional rights guaranteed by the First Amendment by the disqualification decreed by the House. This was not a case of deciding an election dispute by the House and the court sitting on appeal on the decision of the House. This is a case where a disqualification was imposed on unconstitutional grounds, thereby affecting the fu 45. The case of Powell v. McCormack (supra) is also one of disqualification by the House of a Congressman on the basis of qualification which the House added to those specified in the Constitution. In other words, the House purported to unseat a member by disqualifying him on a ground not given in the Constitution. This was not a case of deciding an election dispute. Under the statute in question the Federal District Court had jurisdiction over all civil actions where controversy arises under the Constitution. This was a case entertained on the ground that exclusion of a member of the House was unconstitutional. This case is an authority for the proposition that if a power i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers. 49. The constituent power is sui generis. It is different from legislative power. The position of unlimited law-making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power. 50. In Article 329A an exercise of judicial power is the question for determination. In legislative processes there may be judicial process. If the Legislature has to fix the amount or lay down the principle for fixation of amount the question will arise as to whether this is exercise of judicial power. The determination of the amount will involve judicial procedure. When the Legislature determines the amount the fixation of amount is purely by legislative process. But in doing so the Legislature takes into account factors relevant to individual properties. 51. Every organ of the State has to ascertain facts which make the foundation of its own decision. The Executive usually collects it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of the equality principle from some fields is constitutionally possible. Article 33 excludes judicial review in matters relating to the armed forces. Article 262(2) excludes jurisdiction of courts in water disputes. 55. Decision in election disputes may be made by the Legislature itself or may be made by courts or tribunals on behalf of the Legislature or may be made by courts and tribunals on their own exercising judicial functions. The concept of free and fair election is worked out by the Representation of the People Act. The Act provides a definition of "corrupt practice" for the guidance of the court. In making the law the Legislature acts on the concept of free and fair election. In any legislation relating to the validity of elections the concept of free and fair elections is an important consideration. In the process of election the concept of free and fair election is worked out by formulating the principles of franchise, and the free exercise of franchise. In cases of disputes as to election, the concept of free and fair election means that disputes are fairly and justly decided. Electoral offenses are statutory ones. It is not possible to hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw did not apply and no other law was applied by clause (4). The validation of the election in the present case is, therefore, not by applying any law and it, therefore, offends rule of law. 60. It is true that no express mention is made in our Constitution of vesting the Judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary. 61. The constituent power is sovereign. Law-making power is subject to the Constitution. Parliament may create forum to hear election disputes. Parliament may itself hear election disputes. Whichever body will hear election disputes will h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27, 1975. The right of the detained members of Parliament to move any court for the enforcement of their fundamental right under Article 22 of the Constitution was taken away by the executive or 67. The constitutional position of the two Houses of Parliament is governed by the provisions of Articles 79 and 81 of the Constitution. The respondent contends that unless the President convenes a session of the full Parliament by giving to all members thereof an opportunity to attend the session and exercise their right of speech and vote, the convening of the session will suffer from illegality and unconstitutionality and cannot be regarded as a session of the two Houses of Parliament. Any business transacted in a session of such truncated House cannot, therefore, be regarded in law as a session of a House. 68. The mere fact that a person who is under unconstitutional and illegal detention may be deprived of his right to move a court to secure his release from such illegal detention by means of a Parliament Order under Article 359 is said by the respondent not to render the detention of a person either legal or constitutional, and, therefore, such a detenu must be provided an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the House has the power to secure his presence. In 1543 Ferrers a member was arrested in London. The House, on hearing of his arrest, ordered the Sergeant to go to the Computer and demand his delivery. The Sergeant was resisted by the city officers, who were protected by the sheriffs. The commons laid their case before the Lords. They ordered the Sergeant to repair to the sheriffs, and to require the delivery of Ferrers without any writ or warrant. The Lord Chancellor had offered them a writ of privilege but they refused it. The sheriffs in the meantime had surrendered the prisoner. This practice of releasing members by a writ of privilege continued but no writ was to be obtained. 72. The present mode of releasing arrested members goes back to Shirley's case. In 1603 Shirley was imprisoned in the Fleet, in execution, before the meeting of Parliament. The Commons first tried to bring him into the House by habeas corpus, and then sent the Sergeant to demand his release. The warden refused to give up his prisoner. At length the warden delivered up the prisoner. 73. An Act 1 James 1, c. 13 was passed, which while it recognised the privilege of freedom from arrest, the right of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to move any court for the enforcement of rights conferred by Part III shall remain suspended and persons who are members of House of Parliament are in detention under orders made under the Maintenance of Internal Security Act, the detention cannot be challenged by collateral attack on the ground of deprivation of their participation in the parliamentary proceedings. The challenge will be questioning the detention on the ground that the detention is in violation of Article 19, 21 and 22. 77. Article 85 provides that not more than six months shall intervene between the two sessions of Parliament. Article 85 is not a provision regarding the constitution of Parliament but of holding of sessions. The powers, privileges and immunities of Parliament and its members as provided in Article 105 are that they shall be such as may be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom. 78. In Special Reference No. 1 of 1964, it was held that the court could entertain a petition under Article 226 on the ground that the imposition of penalty by the Legislature on a person who is not a member of the Legislature or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member in England for high treason or any criminal offence is brought before the House by a letter addressed to the Speaker by the committing judge or magistrate. Where a member is convicted but released on bail pending an appeal, the duty of the Magistrate to communicate with the Speaker does not arise. No duty of informing the Speaker arises in the case of a person who while in prison under sentence of a court is elected as a member of Parliament. In the case of detention of members under Regulation 14B of the Defence of Realm Regulations in England, the communication was made to the Speaker by a letter from the Chief Secretary to the Lord Lieutenant of Ireland which was read to the House by the Speaker. The detention of a member under Regulation 18B of the Defence (General) Regulations, 1939, made under the Emergency Powers (Defence) Acts, 1939 and 1940, led to the Committee of Privileges being directed to consider whether such detention constituted a breach of the privileges of the 84. In K. Anandan Nambiar v. Chief Secretary, Government of Madras, the petitioner who were members of Parliament and detained by orders passed by the State Government under Rule 30 (1) (b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reasons given above. It has also to be stated that it is not open to the respondent to challenge the orders of detention collaterally. The principle is that what is directly forbidden cannot be indirectly achieved. 88. The High Court found first that the appellant has to be regarded as a candidate from December 29, 1970 as she held herself out on that date as a candidate. The second finding is that the appellant obtained and procured the assistance of Yashpal Kapur for the furtherance of her election prospects when Yashpal Kapur was serving as a gazetted officer with the Government of India. The High Court found that Yashpal Kapur's resignation from his service though submitted on January 13, 1971 did not become effective until January 25, 1971 when it was notified. The further finding by the High Court is that Yashpal Kapur under the instructions of the appellant delivered election speech on January 7, 1971 at Munshi Ganj and another speech at Kalan on January 19, 1971. The third finding by the High Court is that the appellant and her election agent Yashpal Kapur procured and obtained the assistance of the officers of the State Government, particularly, the District M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction speeches on January 7, 1971 and January 19, 1971 under instructions of the appellant cannot be supported because the appellant was not a candidate either on January 7, 1971 or on January 19, 1971. 94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not to be effective until January 25, 1971 is contended to be displaced by legislative change by the Amendment Act, 1975. Section 8(b) of the Amendment Act, 1975 has introduced Explanation (3) at the end of Section 123(7) of the 1951 Act. This amendment has retrospective operation. 95. The Explanation is as follows : "(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof - (i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and (ii) where the date of taking effect of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 123(7) of the 1951 Act. Under the said provision obtaining or procuring by candidate or his agent any assistance for the furtherance of the prospect of that candidate from gazetted officers is corrupt practice. The Amendment Act, 1975 by Section 8 thereof has added a proviso to Section 123(7) of the 1951 Act. The proviso is as follows : "Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election." 99. The proviso aforesaid shows that where persons in the service of the Government in the discharge of official duty make any arrangement or provide any facility or do any act or thing in relation to a candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The three items which were added by the High Court were cost of erection of rostrums amounting to ₹ 16, 000, cost incurred in installation of loudspeakers amounting to ₹ 1, 951 and cost for providing car transport to respondent No. 1 amounting to ₹ 232.50. The total election expenses found by the High Court came to ₹ 31, 976.47 which was below the prescribed limit of ₹ 35, 000. 104. With regard to hiring charges of vehicles the High Court found that the respondent did not examine any witness to indicate as to whether the vehicles were used only for party propaganda or they were used in connection with the election of the appellant. The High Court further found that the documents which were relied on by the respondent did not establish that the vehicles had been engaged or used in connection with the election work of the appellant. 105. The respondent repeated the following contentions which had been advanced before the High Court. Dal Bahadur Singh, President, District Congress Committee wrote a letter to the District Election Officer intimating that 23 vehicles had been engaged by the District Congress Committee for election work in Rae Bareli, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s election. All these amendments have retrospective operation. Therefore, the cost of rostrums cannot be added to the election expenses of the appellant. Services rendered by government servants for the erection of rostrums and for supply of power for loudspeakers cannot be deemed to be assistance for the furtherance of the prospects of that candidate's election. 109. The respondent contended that Exhibit 118 which was the bank account of the District Congress Committee showed on the one hand that there was deposit of ₹ 69, 930 on March 4, 1971 and on the other there was a withdrawal of ₹ 40, 000 on March 4, 1971 and of ₹ 25, 000 on March 6, 1971, and, therefore, the sum of ₹ 65, 000 should be added to the election expenses of the appellant. When it was put to Yashpal Kapur that the sums of ₹ 40, 000 and ₹ 25, 000 were withdrawn by Dal Bahadur Singh, Yashpal Kapur said that he was not aware of it. There is no pleading in the election petition that the appellant authorised incurring expenditure by a political party. There is no pleading that any amount has been paid by the political party. There is no complaint in the petition about the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the election of a candidate then that expenditure is to be added to the election expenses of a candidate as being authorised by him. There are no findings by the High Court in the present appeals that any expenses by a political party were authorised by the appellant. There is also no finding in the present appeals that any expenses incurred by a political party can be identified with the election of the appellant. The changes in law affected by the Amendment Acts, 1974 and 1975 totally repel the submissions on behalf of the respondent. Expenses incurred or authorised in connection with the election of a candidate by a political party shall not be deemed to be and shall not ever be deemed to have been expenditure in connection with the election incurred or autho 114. Counsel for the respondent contended that the judgment of the High court should be reversed with regard to election expenses of the appellant on three counts. First, Exhibit 118 shows that the sum of ₹ 65, 000 which was drawn by Congress Committee should have been held by the High Court on a reasonable inference to have been spent by the District Congress Committee as having been authorised by the electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that expenditure must be by the candidate himself and any expenditure in his interest by others (not his agent within the meaning of the term of the Election Laws) is not be taken note of. Where vehicles were engaged by the Congress Committee and used by the candidate 117. Expenses incurred by a political party in support of its candidates have been held by this Court not to fall within the mischief of Section 123 (6) of the 1951 Act (see Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi). In Rananjaya Singh v. Baijnath Singh this Court pointed out that expenses must be incurred or authorised by the candidate or his agent. In that case the manager, the assistant manager, 20 ziladars and their peons were alleged to have worked for the election of the appellant. This Court held that the employment of extra persons and the incurring or authorising of extra expenditure was not by the candidate or his election agent. The extra men employed and paid were in the employment of the father of the appellant. This Court said that the position in law could not be at all different if the father had given those employees a holiday on full pay and they voluntarily worked in connection wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the prescribed limit was incurred by the respondent. In Maghraj Patodia's case there is an observation that expenses incurred by a political party to advance to the prospects of the candidates put up by it without more do not fall within Section 77 of the 1951 Act. The words "something more" were constructed by Counsel for the respondent to mean that if a candidate takes advantage of the expenditure incurred or authorised b 121. Allegations that election expenses are incurred or authorised by a candidate or his agent will have to be proved. Authorisation means acceptance of the responsibility. Authorisation must precede the expenditure. Authorisation means reimbursement by the candidate or election agent of the person who has been authorised by the candidate or by the election agent of the candidate to spend or incur. In order to constitute authorisation the effect must be that the authority must carry with it the right of reimbursement. 122. For the foregoing reasons the contentions of the respondent that the the appellant exceeded the limit of election expenses fail. 123. The respondent contended that the amendments by the Amendment Acts of 1974 and 1975 are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the respondent on the amendment of the definition of "candidate" are these. The expression "returned candidate" is descriptive of the person and the corrupt practices mentioned in Section 123 of the 1951 Act in relation to a candidate will not be confined to corrupt practices committed with reference to the definition of "candidate". Corrupt practices alleged in relation to candidates will be relatable to any period and will not to be confined to corrupt practices alleged between the date of nomination and the date of election. If corrupt practices are committed by candidates who eventually become returned candidates such corrupt practices will be offenses within the meaning of Section 123 of the 1951 Act without any reference to the time of commission. 127. Counsel on behalf of the respondent also contended as follows. The basis of fair and free elections is that the election of a candidate will be avoided if any corrupt practice has been committed by the candidate by or with the knowledge and consent of that candidate. The acts of a candidate may be either anterior to the date of nomination or it may be subsequent to the date of nomination. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent that ordinary legislative measures are subject like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. The hierarchical structure of the legal order of a State is that the Constitution is the highest level within national law. The Constitution in the formal sense is a solemn document containing a set of legal norms which may be changed only when special prescriptions are observed. The purpose of special prescriptions is to render the changes of these norms more difficult by regulating the manner and form of these amendments. The Constitution consists of those rules which regulate the creation of the general legal norms, in particular, the creation of statu 133. Articles 245 and 246 give plenary powers to Legislature to legislate. The only question is whether any provision of the Constitution is violated. The power of plenary body is not to be construed like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atures will be applied to legislative measures it will denude Parliament and State Legislature of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers. 137. The constitutional validity of a statue depends entirely on the existence of the legislative power and the express provision in Article 13. Apart from the limitation the Legislature is not subject to any other prohibition. The amendments made to the 1951 Act by the Amendment Acts, 1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain views departed from or otherwise to clarify the original intention. It is within the powers of Parliament to frame laws with regard to elections. Parliament has power to enumerate and define election expenses. Parliament has power to lay down limits on election expenses. Parliament has power to state whether certain expenses can be included or may be excluded from election expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment, resignation or termination of service. Parliament has power to state what can be considered to be office of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely prescribe conditions which must be observed if one wants to enter Parliament. The right to stand as a candidate and to contest an election is not a common law right. It is a special right created by a statue which can only be exercised on the conditions laid down by the statue. The Fundamental Rights chapter has no bearing on a right like this created by a statue relating to election. 141. The contention on behalf of the respondent that the amendment of the definition of "candidate" has damaged or destroyed basic structure is untenable. There is no basic structure or basic feature or basic framework with regard to the time when under the election laws a person is a candidate at the election. The contention of the respondent that the expression "returned candidate" is descriptive of the expression "candidate" will rob Section 100 of its content. The word "candidate" in relation to various electoral offences shows that he must be a candidate at the time of the offence. Time is necessary for fixing the offences. A significant distinction arises between the electoral offences under the 1951 Act and the offences under Sections 171-A to 171 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidate may be unseated for bribery of treating committed months or even years before the vacancy or election (Youghal; Bodwin). The present position under the English Act is stated in Parker's Conduct of Parliamentary Elections 1970 Ed. at p. 330 to be that since the corrupt practice under consideration is purely a statutory offence, which only becomes a corrupt practice by reason of the person in whose support the prohibited expenses were incurred subsequently becoming a candidate, the candidate may not be held responsible. In Norwich the question was considered in relation to the responsibility of a candidate for payments which only became illegal practices by reason of his subsequently becoming a "candidate" as defined by statute, and it was held that he was not liable. The liability of a candidate under the English Act, particularly, with regard to election expenses as laid down in Section 63 of the English Act is regarded as open to doubt until the point is set 145. Sections 171-A to 171-I of the Indian Penal Code and the provisions contained in Sections 125 to 136 of the 1951 Act follow the pattern of English Acts, namely, Statutes 17 & 18 Victoria, Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his behalf. 149. The contention on behalf of the respondent is that the Amendment Acts of 1974 and 1975 fall within the vice of delegated legislation because there are no guiding principles with regard to official duty or nature of expenditure in Explanation 3 to Section 77 of the 1951 Act and in the proviso to Section 123 (7) of the 1951 Act. Official duty will be a duty in law. Official duty will be duty under administrative directions of the Executive. Official duty will be for security, law and order, and matters in aid of public purpose. These duties will be in connection with election. To illustrate, Section 197 of the Criminal Procedure Code speaks of official duty. 150. This Court in Matajog Dobey v. H. C. Bhari interpreted the words "official duty" to have reasonable connection between the act and the discharge of duty. The act must bear such relation to the duty that the person could lay a reasonable claim, but not a pretended fanciful claim, that he did it in the course of the performance of his duty. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic framework fails on two grounds. First, legislative measures are not subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesvananda Bharati's case (supra) is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights. 154. The symbol allotted to the party of the appellant was characterised by the respondent as a religious symbol. Under Article 324 the superintendence, direction and control of elections to Parliament, is vested in the Election Commission. Rule 5 of the Conduct of Elections Rules, 1961 states that the Election Commission shall, by notification in the Gazette of India and in the Official Gazette of each State, specify the symbols that may be chosen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became effective from January 14, 1971. The finding of the High Court that the appellant committed corrupt practice in breach of Section 123 (7) of the 1951 Act is also repelled by the legislative changes and is, therefore, set aside. The order of the disqualification of the appellant is also set aside. 158. For the foregoing reasons the contentions of the appellant succeed and the contentions of the respondent fail. The appeal is accepted. The judgment of the High Court appealed against is set aside the cross objections of the respondent is dismissed. There will be no order as to costs. KHANNA, J. (concurring) - Civil Appeal No. 887 of 1975 has been filed by Smt. Indira Nehru Gandhi (hereinafter referred to as the appellant) against the judgment of the Allahabad High Court whereby election petition filed by Shri Raj Narain respondent No. 1 (hereinafter referred to as the respondent) to question the election of the appellant to the Lok Sabha from Rae Bareli parliamentary constituency was allowed and the election of the appellant was declared void. The appellant was found guilty of having committed corrupt practices under Section 123 (7) of Representation of the People Act, 1951 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Magistrate, Superintendent of Police, Rae Bareli and the Home Secretary, Uttar Pradesh Government were utilised for the purposes of the construction of rostrums and installation of loudspeakers at various places within the constituency where the appellant addressed her election meetings as also for the purpose of making arrangement of barricading and posting of police personnel on the routes by which the appellant was to travel in her constituency and at the places where she was to address meetings, in order to give publicity to her visits and thus attract large crowds. The appellant was thereby stated to have committed corrupt practice under Section 123(7) of the R. P. Act. (4) Yashpal Kapur, election agent of the appellant and her other agents with the consent of Yashpal Kapur, freely distributed quilts, blankets, dhotis and liquor among the voters to induce them to vote for her and thereby the appellant committed corrupt practice of bribery under Section 123(1) of the R. P. Act.(5) The appellant and her election agent made extensive appeals to the religious symbol of cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P. Act. (6) Yashpal Kap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for members of the police force to be posted in connection with her election tour on February 1, 1971 and February 25, 1971; and if so, whether this amounts to a corrupt practice under Section 123(7) of the Representation of the People Act ? (4) Whether quilts, blankets, dhotis and liquor were distributed by agents and workers of respondent No. 1, with the consent of her election agent Yaspal Kapur, at the places and on the dates mentioned in Schedule A the petition in order to induce electors to vote for her? (5) Whether the particulars given in paragraph 10 and Schedule A of the petition are too vague and general to afford a basis for allegation for bribery under Section 123(1) of the Representation of the People Act ? (6) Whether by using the symbol of the cow and calf, which had been allotted to her party by the Election Commission in her campaign the respondent No. 1 was guilty of making an appeal to a religious symbol and committed a corrupt practice as defined in Section 123(3) of the Representation of the People Act ? (7) Whether on the dates fixed for the poll voters were conveyed to the polling stations free of charge on vehicles hired and procured for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with the election incurred or authorised by the candidate or by his election agent for the purposes of this sub-section : Provided * * * * Explanation 2. - For the purposes of Explanation 1, "political party" shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force." The above amendment in Section 77 had a bearing on the allegation which was the subject-matter of issue No. 9. The respondent filed writ petition challenging the validity of the amending Act. 164. The High Court decided issues Nos. 2, 4, 6 and 7 in favour of the appellant and against the respondent. Issues Nos. 5, 8 and 10 were found in favour of respondent and against the appellant. On issue No. 9 the finding of the High Court was that the total amount of expenditure incurred or authorised by the appellant or her election together with the expenditure proved to have been incurred by the party or by the State Government in connection with the appellant's election amounted to ₹ 31, 976.47 which was sufficiently below the prescribed limit of ₹ 35, 000. The appellant as such was held not guilty of any corrupt practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction prospects. The appellant, it was accordingly 167. An appeal against the judgment of the learned Single Judge of the High Court dismissing the writ petition is pending before the High Court. 168. During the pendency of these appeals, Parliament passed the Election Laws (Amendments) Act, 1975 (Act 40 of 1975) (hereinafter referred to as 1975 amending Act or Act 40 of 1975) and the same was published in the Gazette of India Extraordinary dated August 6, 1975. Section 2 of the 1975 Amending Act substituted a new section for Section 8A in the Act. According to the new section, the case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted as soon as may be, after such order takes effect to the President for determination of the question as to whether such person shall be disqualified and if so, for what period, not exceeding six years. It is also provided that the person who stands disqualified may before the expiry of the period of disqualification submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period. The President shall then give his decision on such petition after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a state Government shall be conclusive proof -(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and (ii) whether the date of taking effect of such appointment, resignation, termination of service, as the case may be, is stated in such publication, also of the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date.' (9). In the Indian Penal Code, in Section 171A, for clause (a), the following clause shall be substituted, namely : ' (a) 'candidate' means a person who has been nominated as a candidate at any election.' 10. The amendments made by Sections 6, 7 and 8 of this Act in the principal Act shall also have retrospective operation so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to doubts and disputes in relation to such election include the grounds on which such election may be questioned. (2) The validity of any such law as is referred to in clause (1) and the decision of any authority or body under such law shall not be called in question in any court. (3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of People, while an election petition referred to in clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in clause (1).(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to applied to or in relation to the election of any such person as is referred to in clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle applies to the facts of the present case. He, however, contends that Section 4 of the Constitution Amendment Act which has inserted Article 329A in the Constitution is invalid. The validity of the above constitutional amendment has been challenged by Mr. Shanti Bhushan on the following two grounds : (1) The above constitutional amendment affects the basic structure or framework of the Constitution and is, therefore, beyond the amending power under Article 368. (2) The Constitution Amendment Act was passed in a session of Parliament after some members of Parliament had been unconstitutionally detained and thus illegally prevented from influencing the views of other members present at the time the above Act was passed. This ground, it is urged, also affects the validity of the amending Act 40 of 1975. 174. Article 329A deals with election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election and to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the respondent, could not be present because they had been illegally detained. The fact that those measures were passed by the requisite majority has not been questioned by the learned Counsel but he submits that if the above mentioned members had not been detained and not been prevented from attending the sitting of Parliament, they could have influenced the other members and as such it is possible that the impugned Constitution Amendment Act and the 1975 R. P. Amending Act might not have been passed. Mr. Shanti Bhushan accordingly asserts that the sittings of the Houses of Parliament in which the above mentioned two measures were passed were not legal sittings. Any measures passed in such sittings, according to the learned Counsel, cannot be considered to be a valid piece of 178. There is, in my opinion, no force in the above submission. The proposition that a member of Parliament cannot claim immunity from being detained under a law relating to preventive detention does not now admit of much doubt. The privileges, powers and the immunities of the members of the two Houses of Indian Parliament as well as of the Indian Legislature are the same as those of the members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not valid essentially relates to the validity of the proceedings of the two Houses of Parliament. These are matters which are not justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into the question as to whether the measures passed by Parliament are constitutionally valid. The court cannot, however, go into the question as to whether the sittings of the Houses of Parliament were not constitutionally valid because some of those Houses were prevented from attending and participating in the discussions in those Houses. It has not been disputed before us, as already mentioned, that the impugned Constitution Amendment Act and the statutory amendment Act were passed by the requisite majority. It is not the case of the respondent that the number of the detained members of Parliament was so large, that if they had voted again 181. According to clause (3) of Article 105 of the Constitution, to which a short reference has been made earlier, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses that such bill has passed by Congress; and when the bill, thus attested receives the approval of the President, and is deposited in the public archives, its authentication as a bill that has passed Congress is complete and unimpeachable. An enrolled Act thus authenticated is sufficient evidence of itself that it passed Congress." In the case of a constitutional amendment which requires ratification by the States, the position was stated by Brandeis, J. in the case of Oscar Leser v. J. Mercer Garnett as follows : "The proclamation by the Secretary certified that, from official documents on file in the Department of State, it appeared that the proposed Amendment was ratified by the Legislature of thirty-six States, and that it" has become valid to all intents and purposes as a part of the Constitution of the United States ". As the Legislatures of Tennessee and West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th 187. Part (ii) of clause (4) spells out the consequence which flows from part (i) of the clause. If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election of the Prime Minister and the Speaker, it would necessarily follow that the election of the appellant who was the Prime Minister would not be deemed to be void or ever to have become void on the ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law. 188. The same, to some extent, appears to be true of part (iv) of clause (4). If the previous law in so far as it relates to the election petitions and matters connected therewith was not to apply to the election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Declaration of voidness of a judgment, it is stated, is a judicial act and cannot be taken over by the constituent authority. Although Legislatures or the constituent authority can make laws, including for creation of courts, they cannot, according to the submission, exercise judicial functions by assuming the powers of a super court in the same way as the courts cannot act as a super Legislature. It is, in my opini 195. We may now come to part (iii) of clause (4). By part (iii) it is declared that the election of the appellant shall continue to be valid in all respects. Such a declaration would not follow from part (i) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as mentioned earlier, in effect represented the consequences flowing from part (i). The election to the Lok Sabha of the appellant, who was the Prime Minister, was challenged on the ground that she or her election agents had been guilty of some malpractices. The declaration that her election was to be valid in all respects necessarily involved the process of going into the grounds on which her election had been assailed and holding those grounds to be either factually inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical election, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representative. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that election are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defe ion arises whether a member of a House of Parliament has become disqualified for membership, the decision of that House shall be taken and shall be final. 199. Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection of the appellant, the constituent authority has declared the election of the appellant to be valid. 202. To confer an absolute validity upon the election of one particular candidate and to prescribe that the validity of that election shall not be questioned before any forum or under any law would necessarily have the effect of saying that howsoever gross may be the improprieties which might have vitiated that election, howsoever flagrant may be the malpractices which might have been committed on behalf of the returned candidate during the course of the election and howsoever foul and violative of the principles of free and fair elections may be the means which might have been employed for securing success in that election, the said election would be nonetheless valid and it would not be permissible to complain of those improprieties, malpractices and unfair means before any forum or under any law with a view to assail the validity of that election. Not much argument is needed to show that any provision which brings about that result is subversive of the principle of free and fair election in a democracy. T 203. The vice of declaration contained in part (iii) of clause (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the constituent authority went into the material which had been adduced before the High Court relating to the validity of the election of the appellant and after considering that material held the election of the appellant to be valid. Indeed, the statement of objects and reasons appended to the Constitution (Thirty-ninth Amendment) Bill makes no mention of this thing. In any case, the vice of clause (4) would still lie in the fact that the election of the appellant was declared to be valid on the basis that it was not to be governed by any law for settlement of election disputes. Although the provisions of a c 206. The matter can also be looked at from another angle. The effect of impugned clause (4) is to take away both the right and the remedy to challenge the election of the appellant. Such extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is incompatible with the process of free and fair elections. Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute relating to the election of a person who holds the office of the Prime Minister or Speaker. As it is, what we find is that so far as the dispute relating to the election of the appellant is concerned, neither the previous law governing the election of persons holding the office of the Prime Minister is to apply to it nor the future law to be framed under clause (1) of Article 329A governing the election of persons holding the office of Prime Minister is to apply to this dispute. Likewise, the previous forum for adjudicating upon the election dispute which went into the matter, has been divested of its jurisdiction with retrospective effect and, at the same time, 210. It has been argued in support of the constitutional validity of clause (4) that as a result of this amendment, the validity of one election has been preserved. Since the basic structure of the Constitution, according to the submission, continues to be the same, clause (4) cannot be said to be an impermissible piece of constitutional amendment. The argument has a seeming plausibility about it, but a deeper reflection would show that it is vitiated by a basic fallacy. Law normally connotes a rule or norm which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the very vice for which we are striking down clause (4). I am, therefore, of the view that clause (4) should be struck down in its entirety. 212. In view of my finding that clause (4) strikes at the basic structure of the Constitution, it is not necessary to go into the question as to whether, assuming that the constituent authority took it upon itself to decide the dispute relating to the validity of the election of the appellant, it was necessary for the constituent authority to hear the parties concerned before it declared the election of the appellant to be valid and thus in effect repelled the challenge of the respondent to the validity of the appellant's election. 213. As a result of the above, I strike down clause (4) of Article 329A on the ground that it violates the principle of free and fair elections which is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... didate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate." The new definition states that" unless the context otherwise requires, 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election ". The question as to when a person holds himself out as candidate, therefore, loses its importance in the context of the new definition. 217. One of the grounds which weighed with the High Court in declaring the election of the appellant to be void was that the appellant committed corrupt practice under the Section 123 (7) of the R. P. Act inasmuch as she obtained and procured the assistance, for the furtherance of her election prospects, of Yaspal Kapur during the period from January 7 to 24, 1971 when Yashpal Kapur was still a gazetted officer in the service of the Government of India. 218. According to clause (7) of Section 123 of the R. P. Act, the following act shall constitute corrupt practice under that clause :" The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of sub-section (2) of the section if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void."Returned candidate" has been defined in clause (f) of Section 79 to mean, unless the context otherwise requires, a candidate whose name has been published under Section 67 as duly elected. It is urged that as the corrupt practice referred to in clause (b) of Section 100(1) of the R. P. Act would in the very nature of things have to be committed by the returned candidate before his name was published under the Section 67 as duly elected, the words "returned candidate" in clause (b) of Section 100(1) must be taken to have been used with a 220. Reference has also been made by Mr. Shanti Bhushan to observation on pages 222-3 of Vol. 14 of Halsbury's Laws of England, Third Edition, according to which a candidate at a general election may be guilty of treating even though the treating took place before the dissolution of Parliament and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the officers of the U. P. Government, particularly the District Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel Department for construction of rostrums and arrangement of supply of power for loudspeakers in the meetings addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her election prospects. It is not disputed that what was done by the above mentioned officers was in pursuance of official directions and in the discharge or purported discharge of the official duties. This is indeed clear from letter dated November 19, 1969 from the Government of India, Ministry of Home Affairs to all State Governments wherein there is reference to rule (6) of the Rules and Instructions for the Protection of the Prime Minister and it is state" As the security of the Prime Minister is the concern of the State all arrangements for putting up the rostrums, the barricades, etc. at the meeting place, including that of an election meeting will have to be made by the State Government concerned. . . . started checking (Mrs.Joshi) In the case of election meetings, all expenditure on police, setting up of barricades and ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the apart from his submission with regard to the validity of Act 40 of 1975, his objection relating to the applicability of Act 40 of 1975 was confined to two matters, namely, the connotation of the word "candidate" and the meaning to be the attached to official duty. Both these objections have been found by me to be not tenable. I would, therefore, hold that subject to the question as to whether the provisions of Act 40 of 1975 are valid, the grounds on which the High Court has declared the election of the appellant to be void no longer hold good for declaring the said election to be void. 225. We may also before dealing with the validity of Act 40 of 1975 refer to one other change brought about by that Act which has a bearing upon the present case. It was the case of the respondent that the appellant and her election agent made extensive appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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 by the Legislature have prospective operation, occasions arise quite often when necessity is felt of giving retrospective effect to a law. This holds good both in respect of a principle Act as well as in respect of an amending Act. If the provisions of an Act passed by the Legislature are not violative of the provisions of the Act passed by the provisions shall have to be given effect to and the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olls in respect of other municipalities as wel 229. In Knata Kathuria v. Manak Chand Surana (supra) the dispute related tot he election of the appellant to the Rajasthan Legislative Assembly. The appellant in that case had been appointed as a Special Government Pleader to represent the State of Rajasthan in an arbitration case. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election of the appellant was challenged inter alia on the ground that the appellant held an office of profit within the meaning of Article 19(1) of the Constitution. The High Court set aside the election of the appellant. The appellant then came up in appeal to this Court. During the pendency of the appeal, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly. The Act was made retrospective and removed the appellant's disqualification retrospectively. On the question as to g that the appellant held an office of profit. All the five Judges constituting the Constitution Bench were, however, unanim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Erskine May's Treatise on the Law, Privileges Proceedings & Usage of Parliament - Seventeenth Edition (1964)] - 'After the general election of 1945 it was found that the persons elected for the Coatbridge Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of attendance at a tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn Elections (Validation) Bill was introduced to validate the irregular elections (H. C. Deb. (1945-46) 414, c. 564-6). See also H. C. 3 (1945-46); ibid. 71 (1945-46) and ibid. 92 (1945-46).'We have also noticed two earlier instances of retrospective legislation, e.g. the House of Commons (Disqualification) Act, 1813 (Halsburry's Statutes of England p. 467) and Section 2 of the Re-election of Ministers Act, 1919 (ibid p. 515) Great stress was laid on the word 'declare' in Article 19(1) (a), but w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or reverse the consequence of their own decrees. There is no necessity to give instances to prove that they have frequently done so; even going so far as to restore the heritable quality to blood which had been deprived of its virtue by acts of attainder." 232. I am not impressed by the argument that retrospective operation of the relevant provisions of Act 40 of 1975 affects free and fair elections. The said provisions of Act 40 of 1975 are general in terms and would apply to all election disputes which may be pending either in the High Court or in appeal before the Supreme Court or which may arise in future. It is no doubt true that the retrospective operation of an amending Act has the effect of placing one of the parties to the dispute in a more advantageous position compared to others but that is inevitable in most of the amendments with retrospective operation. This Court in the case of Harbhajan Singh v. Mohan Singh dealt with the provisions of Section 3 of the Punjab Pre-emption (Repeal) Act, 1973, according to which on and from the date of commencement of that Act, no court shall pass a decree in any suit for pre-emption. This Court held that the above provision w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olds himself out as a candidate does not affect the process of free and fair elections. It is necessary while dealing with corrupt practice relating to elections to specify the period within which the impugned act, alleged to constitute corrupt practice should have been done. As a result of the amendment, the Legislature has fixed the said period to be as from the date of nomination instead of the period as from the date on which the candidate with the election in prospect began to hold himself out as a prospective candidate. It is common experience that the date from which a candidate holds himself out as a prospecti 236. One of the objects of the change effected by Act 40 of 1975 is to remove the uncertainty and set at rest the controversy as to what would be the precise date of a person in the service of the Central Government ceasing to be in such service in case he tenders his resignation. The amended law makes it clear that where the date of taking effect of the resignation is stated in the publication in the Official Gazette, it shall be that date. Similarly, in the case of appointment of a person, the date of taking effect of such appointment shall be the date mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to be camouflaged as an action taken in public interest. Care must be taken to ensure that public interest is not allowed to degenerate into a cloak for furtherance of the personal interests of a candidate in an election. The discharge o 238. One other change brought about by Act 40 of 1975 is the addition of an explanation in Section 77 of the R. P. Act. According to the new explanation, any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of Section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate or by his election agent for the purposes of Section 77(1). The validity of the above explanation in a great measure is linked with the validity of the new proviso to Section 123(7) of the R. P. Act, and for the reasons stated for upholding the proviso to Section 123(7), the new explanation to Section 77, it seems, may have also to be upheld. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ₹ 6, 600 (vi) Expenses on the erection of rostrums for the public meetings addressed by the appellant in the constituency on February 1 and 25, 1971 .. ... over ₹ 1, 32, 000 (vii) Expenses on arrangement of loudspeakers for the various election meetings of the appellant addressed on February 1 and 25, 1971 .. ... over ₹ 7, 000 (viii) Expenses on motor transport for the conveyance of the appellant and her party to the place of her election meetings on February 1 and 25, 1971 .. ... over ₹ 2, 000 The High Court held that the respondent had failed to prove the first five times. As regards the expenses for the erection of rostrums for the public meetings addressed by the appellant on February 1 and 25, 1971, the High Court found that four meetings were addressed by the appellant in the constituency on February 1 and six meetings on February 25, 1971. The cost of a rostrum in each meeting came to ₹ 1, 600. The total expenses of the ten rostrums thus came to ₹ 16, 000 and the same, it was held, was liable to be added to the amount shown in the return of election expenses of the appellant. The amount of ₹ 16, 000 included the money paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, requested to write the above letter to the District Election Officer positively so that the election work of all the three parliamentary constituencies which is going on, on behalf of District Congress Committee, may not suffer." On February 25, 1971 Yashpal Kapur addressed a letter to the District Officer, Rae Bareli, stating that the 23 vehicles in question had been taken by the District Congress committee, Rae Bareli, for the three parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat. The District Officer was requested to release the 23 vehicles without delay. Yashpal Kapur also enclosed with that letter the note of Dal Bahadur Singh. The 23 vehicles, it would appear, were thereafter released by the District Election Officer. The appellant, in para 17(b) of her written statement, admitted that those 23 vehicles were used by the District Congress Committee, Rae Bareli, for election work in the three parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat. The High Court, in not accepting the case of the respondent in respect of the 23 vehicles, observed that there was nothing to show that the above mentioned vehicles had been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not warrant the filling in of the gaps and lacunae in the evidence adduced by the respondent by a process akin to guess work. It is no doubt true that by using a vehicle for the furtherance of the prospects of candidates in more than one constitue s was used in more than one constituency, including that of the returned candidate who was a Congress nominee. Question arose as to whether the expense incurred in connection with that jeep could be included in the election expenses of the returned candidate. While answering the question in the negative, Hidayatullah, C.J. observed : "The bill stands in the name of the Congress Committee and was presumably paid by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of the returned candidate and to that extent we subscribe to the finding given by the learned Judge. Even if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must be included in his account, the difficulty is that this jeep was used also for the general Congress propaganda in other constituencies. As we stated, the jeep remained in Chalet and at Mubarakpur. No doubt Chalet is the home town ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the election expenses of the appellant exceeded the prescribed amount of ₹ 35, 000. It has been pointed out that a cheque for ₹ 70, 000 was sent by the Provincial Congress Committee to Dal Bahadur Singh, President of the District Congress Committee, Rae Bareli, and the same was credited in Dal Bahadur Singh's account after deducting of the bank charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount ₹ 40, 000 and ₹ 25, 000 on March 4 and 6, 1971, respectively nearabout the days of polling. It is urged that the said amount must have been spent for the purpose of the elections. There was no reference to the said amount of ₹ 70, 000 in the petition. There is also no reference to the amount of ₹ 70, 000 in the judgment of the High Court or in the grounds of appeal. As such, I am of t" Learned Counsel for the petitioner urged that from the evidence on record, it transpires that expenditure was also incurred on the telephone connection and telephone charges; on the meetings addressed by Sri Yashpal Kapur within the constituency during the period of election; on the election material viz., pamphlets, posters, etc. and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constitution amendment under Article 368 does not constitute "law" as mentioned in Article 13. I also did not agree with the view taken in the case of Golaknath that the" I am further of the opinion that amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. The word 'amendment' postulates that the old Constitution survives without loss of identity despite the change and continues even though it has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include within itself the power to add, alter or repeal the various articles including 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 : (SCC p. 824, para 1537)" (vii) The power of amendment under Article 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles ". 252. It has been stated by me on page 685 SCC(p) 767 ) of the judgment (already reproduced above) that the secular character of the State, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ". 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 R. P. Act and has declared her election to the Lok Sabha to be void. The order that the appellant shall accordingly stand disqualified for a period of six years as provided in Section 8A would also consequently be set aside. The election petition filed by the respondent shall stand dismissed. Appeal No. 909 of 1975 filed by Shri Raj Narain is dismissed. Looking to all the circumstances, more particularly the fact that the election petition filed by the respondent is being dismissed because of changes made in law during the pendency of the appeal, the parties are directed to bear their own costs throughout. MATHEW, J. (concurring) - In the election petition filed by the respondent in Civil Appeal No. 887 of 1975 (hereinafter referred to as 'respondent'), seven charges of corrupt practice were made against the appellant therein (hereinafter called the 'appellant') and it was prayed that the election of the appellant be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse 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 provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned. (2) The validity of any such law as is referred to in clause (1) and the decision of any authority or body under such law shall not be called in question in any court. (3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while an election petition referred to in clause (b) of Article 329 in respect of his election petition referred to in clause (b) of Article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant law, the amendment has fundamentally damaged an essential feature of the democratic structure of the Constitution, namely, free 262. Counsel also submitted that equality and rule of law are essential features of democracy; that clause (4), by dispensing with the application of the law relating to election petition and matters connected therewith to the appellant, made an unreasonable classification among persons similarly situated with reference to the purpose of the law. 263. The further submission was, that separation of powers is a basic structure of the Constitution and that if it be supposed that the amending body ascertained the facts regarding the election of the appellant and applied the relevant law, the exercise of that power by the amending body would offend the doctrine of separation of powers and that, at any rate, this process would not result in an amendment of the Constitution by enacting a law, but only in the passing of a judgment or sentence which can never be characterized as a law, let alone a law relating to the Constitution of India. 264. In His Holiness Kesawananda Bharati Sripadagalavaru v. State of Kerala (hereinafter referred to as 'B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, the amending body did not ascertain the facts relating to the election and apply the relevant norm, the declaration of the validity of the election was a fiat of a sui generis character of the amending body. 268. The concept of democracy as visualized by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite (see N. P. Ponnuswami v. Returning Officer, Namakkal Constituency). 269. Article 329(b) envisages the challenge to an electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited Kingdom. Provisions is made in each case for constituting a rota from whom these judges are selected. The House has not cognizance of these proceedings until their determination, when the judges certify their determination. The judges are to make a report in any case where a charge has been made in the petition of corrupt and illegal practice having been committed at an election; and they may also make a special report on any matter arising which they think should be submitted to the House. 272. Article 1, Section 5(1) of the Constitution of the United States of America provides that each House shall be the judge of the elections, returns and qualifications of its own members. 273. In whichever body or authority the jurisdiction is vested, the exercise of the jurisdiction must be judicial in character. This Court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision notwithstanding the provisions of Article 329(b) (see Durga Shankar Mehta v. Thakur Raghuraj Singh). 274. In Barry v. United States Ex. Rel. Cunningham, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cteristic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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. "282. The point to be kept in mind is that the amending body which exercises the constituent power of the legal sovereign, though limited by virtue of the decision in Bharati's case (supra), can express itself only by making laws. 283. The distinction between constitutional law and ordinary law in a rigid Constitution like ours is that the validity of the constitutional law cannot be challenged whereas that of ordinary law can be challenged on the touchstone of Constitution. But constitutional law is as much law as ordinary law. A Constitution cannot consist of a string of isolated dooms. A judgment or sentence which is the result of the exercise of judicial power or of despotic discretion is not a law as it has not got the generality which is an essential characteristic of law. A despotic decision without ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment. 284. According to Blackstone, a law and a particular command are dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 289. It may be noted that Kelsen made no distinction between law-creation and law-application. According to him, every act of applying the law involved the creation of norms. In his view, there was not distinction between creation and application of law, a view I find difficult to accept in the light of clear distinction made by the decisions of this Court between legislative and judicial functions. 290. A statute is a general rule. A resolution by the Legislature that a town shall pay one hundred dollars to Timothy Coggan is not a statute. 291. The mere fact that an Act to indemnify A or and Act sanctioning a pension to the Speaker is passed by the House of Commons in England should not lead us to conclude that it is law." The English Legislature was originally constituted, not for legislative, but for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 296. To Friedmann, the most essential element in the concept of law is a degree of generality :" The first desideratum of a system for subjecting human conduct to the governance of rules is an obvious one : there must be rules. This may be stated as a requirement of generality. Here as in so many other fields, John Austin's distinction was basically right, but too rigidly drawn. "Friedmann was of the view that a community which had no general prescription at all, but only an infinite multitude of individual commands, would not be regarded as having a legal order. It would dissolve into millions of individual relationships. 297. For the purpose of this case I accept as correct the statement of Blackstone already quoted and approved by the Privy Council in Liyanage v. Queen (supra). I cannot regard the resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f offences against the State in or about January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate the three judges to try the appellants without a jury. The validity of the Act was challenged as well as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon Supreme Court upheld the objection about the vires of some of the provis 301. The Privy Council said in the course of their judgment that the pith and substance of the law enactments was a legislative plan ex post facto to secure the conviction, that although legislation ad hominem which is directed to the course of particular proceedings may not always amount to an interference with the functions of the Judiciary, but in the present case they had no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments and that it was fatal to their validity. They further said that the true nature and purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding body expressly excluded the operation of all laws relating to election petition and matters connected therewith by the first part of clause (4), what ideal norms of free and fair election it had in view in adjudging the validity of the election of the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the law enacted by the appropriate Legislatures. If the amending body evolved new norms for adjudging the validity of the particular election, it was the exercise of a despotic power and that would damage the democratic structure of the Constitution. 306. Quite apart from it, there is nothing on the face of the amendment to show that the amending body ascertained the facts of the case or applied any norms for determining the validity of the election. I do not think that under Article 368 the amending body was competent to pass an ordinary law with retrospective effect to validate the election. It can only amend the Constitution by passing a law of the rank of which the Constitution is made of. 307. There is also nothing to show that the amending body validated the election with reference to any change of the law which formed the foundation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recover penalties under the Order from the respondent, who he alleged had sat and voted after his seat had become vacant under its provisions by reason of his having a pecuniary interest in a contract with the Government. In 1928, after the action had been brought but before its trial, an amending Order in Council was made which provided :" If any such action or legal proceeding has been or shall be instituted, it shall be dismissed and made void, subject to such order as to costs as the Court may think fit to make. "It also amended the Order of 1923 so as to except the officer held by the respondent from its operation. The Privy Council held that the Order of 1928 was valid, having regard to the power reserved by the Order of 1923, and was an effective defence to the action, although it was retrospective in its operation and that this was no exercise of judicial power. The direction to dismiss must be understood in the light of an earlier provision in the same Order in Council which amended the law on which the proceeding was founded; the dismissal was thus the result of the change in the law and all that the later clause showed was that the change was to have retro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 other municipalities. Thereupon, B filed a writ petition before the High Court contending 314. This Court held that Section 3(1) of the Ordinance effectively removed the defects in the electoral rolls found by the High Court by its judgment and that it successfully cured the invalidity of the electoral roll and of the elections to the Cuttack municipality. 315. The Solicitor General also cited other decisions to show that a Legislature can validate proceedings rendered invalid by judgment of court. As I said, they all involved substitution of new law with retrospective effect for the old one and the basic facts were all taken to have been admitted or not controverted. If the facts are not admitted, the Legislature cannot determine them except by employing judicial process. Besides, those cases being cases of legislative validation, need not pass the test of the theory of basic structure which, I think, will apply only to constitutional amendment. 316. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hundred and seventy-three despots would surely be as oppressive as one. And, Montesquieu's own words would show that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted. In Federalist No. 47, James Madison suggests that Montesquieu's doctrine did not mean that separate departments might have "not partial agency in or no control over the acts of each other." His meaning was, according to Madison, no more than that one department should not possess the whole power of another. 320. The Judiciary, said the Federalist, is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. Of the three powers Montesque said, the Judiciary is in some measure next to nothing. If he realised the relative weakness of the Judiciary at the time he wrote, it is evidence of his vision that he appreciated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a bar to the vesting of such a power in itself. But, until a law is passed enabling it to do so 324. Lord Coke objected to the exercise of judicial power by James I for pragmatic reasons. Much of what Lord Coke said can be applied to Parliament when it seeks to exercise that power in its constituent capacity. 325. A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pro-sovereign - the holder of the amending power - in a country governed by a Constitution should function. Such a sovereign can express 'himself' only by passing a particular kind of law; and not through sporadic acts.'He' cannot pick and choose cases according to his whim and dispose them of by administering 'cadi-justice'; nor can the amending body, as already noticed, pass an ordinary law, as Article 368 speaks of the constituent power of amending by way of addition, variation or repeal, any provision of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) did not hold that Article 14 pertains to the basic structure of the Constitution. The majority upheld the validity of the first part of Article 31-C; this would show that a constitutional amendment which takes away or abridges the right to challenge the validity of an ordinary law for violating the fundamental right under that article would not destroy or damage the basic structure. The only logical basis for supporting the validity of Articles 31-A, 31-B and the first part of 31-C is that Article 14 is not a basic structure. 331. Counsel for the respondent, however, submitted that even if Article 14 does not pertain to basic structure, equality is an essential feature of democracy and rule of law and that clause (4), by dispensing with the application of the law relating to election petition and matters connected therewith to the appellant and another has made an unreasonable distinction between persons similarly situated and has thereby damaged or destroyed that essential feature, and therefore, the clause is bad. He said that in so far as laws are general instructions to act or refrain from acting in certain ways in specified circumstances enjoined upon persons of a specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of individual liberty and public order. The notion of justice maintains the balance between the two; and justice has a variable content. Dicey's formulation of the rule of law, namely," the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government "has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness. There has been no government or legal system in world history which did not involve both rules and discretion. It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of laws and of men. Jerome Frank has said :" This much we can surely say : For Aristotle, from whom Harrington derived the notion of a governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. 341. Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty 342. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the equal protection clause of the Fourteenth Amendment to the American Federa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Con 346. I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy; justice, political, economic an social; liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them." .... (N) o political terms have been so subjected to contradictory definitions as 'democracy' and 'democratic' since it has become fashionable and profitable for every and any State to style itself in this way. The Soviet Union and communist States of Eastern Europe, the Chinese People's Republic, North Korea and North Vietnam all call themselves democracies. So does Nasser's Egypt; so does General Stoessner's Paraguay; so did Sukarno's Indonesia. Yet, if anything is clear, it is that these States do not all meet the same definition of democra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 349. This would indicate that the constitution has entrusted the task of framing the law relating to election to Parliament, and, subject to the law made by Parliament, to the State Legislatures, An important branch of the law which sounds in the area of free and fair election, namely, delimitation of constituencies and allotment of seats to such constituencies is put beyond the cognizance of court. When it is found that the task of writing the legislation on the subject has been comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, if by taking away or abridging the fundamental rights, the basic structure of the Constitution is damaged or destroyed, then, according to the learned Chief Justice, the legislation would be vulnerable on that score, even though it is put in the Ninth Schedule by a constitutional amendment. But it would not follow that an Act so put can be challenged for a reason not resulting from the taking away or abrogation of the fundamental right. To put it differently, even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would 354. Shelat and Grover, JJ. have said in their judgment that the Twenty- ninth Amendment is valid, but the question whether the Acts included in the Ninth Schedule by that amendment or any provision of those Acts abrogates any of the basic elements of the constitutional structure or denudes them of their identity will have to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 359. Counsel for the respondent then contended that retrospective operation has been given to the provisions of these Acts and that that would destroy or damage an essential feature of democracy viz, free and fair elections. The argument was that if one set of laws existed when an election was held and the result announced, you cannot thereafter substitute another set of laws and say that those laws must be deemed to have been in operation at the time when the election was held and the result announced, as that would lead to inequality, injustice and unfairness. 360. Retrospective operation of law in the field of election has been upheld by this Court [see Kanta Kathuria v. Manak Chand (supra)]. Retrospective operation of any law would cause hardship to some persons or other. This is inevitable; but that is no reason to deny to the Legislature the power to enact retrospective law. In the case of a law which has retrospective effect, the theory is that the law was actually in operation in the past and if the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from custody for attending parliament. The very same principle will apply in the case of a detention under an emergency regulation. 366. In England, it was taken as settled that parliamentary roll is conclusive of the question that a bill has been passed by both Houses of Parliament and has received royal assent and no court can look behind the roll as such an inquiry would be an interference with the privilege of Parliament. Lord Campbell said in Edinburgh & Dalkeith Ry. v. Wauchope :" I think it right to say a work or two upon the point that has been raised with regard to an Act of Parliament being held inoperative by a court of justice because the forms prescribed by the two Houses to be observed in the passing of a Bill have not been exactly followed...... I cannot but express my surprise that such a notion should have prevailed. There is no foundation for it. All that a court of justice can do is to look to the Parliamentary Roll. If from that it should appear that a Bill has passed both Houses and received the Royal Assent, no court of justice can inquire into the mode in which it was introduced in Parliament, nor into what was done previous to its introduction, or wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment express its will ? 370. 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. 371. As to parliamentary roll, Heuston has said :" The 'Parliamentary Roll', whatever exactly it may have been, disappeared in England a century ago, though even good authors sometimes write as if it still exists. Since 1849 there has been no 'Roll', simply two prints of the Bill on durable vellum by Her Majesty's Stationery Office, which are signed by the Clerk of the Parliaments and regarded as the final official copies. One is preserved in the Public Record Office and one in the library of the House of Lords ". 372. Article 122(1) provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. So, even if there is any irregularity in the procedure in the passing of the statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hink that the proceedings of Parliament would become illegal for that reason. 377. The suspension of the remedy for the enforcement of fundamental rights by the order of the President under Article 359 is dependent upon a valid proclamation of emergency under Article 352. If a situation arose which authorized the President to issue a proclamation under Article 352, he could also suspend, under Article 359, the remedy to move the court to enforce the fundamental rights. These are the constitutional functions of the President and unless it is established that the proclamation made by the President under Article 352 or the suspension under Article 359 of the remedy for enforcement of fundamental rights is unconstitutional, it is impossible to hold that the President has, in any way, illegally prevented the release of these members from the supposed illegal detention so as to make a session of Parliament unconstitutional in consequence of the inability of those members to attend the session. In other words, the President, in performing his constitutional function under these articles has 378. Counsel for the respondent submitted that it is immaterial when a candidate committed a corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 383. The Legislature must fix some point of time before which a person cannot be a 'candidate' in an election, and, a wide latitude must be given to the Legislature in fixing that point. In Union of India v. M/s. Parameswaran March Works, this Court observed : (SCC p. 311, para 10)" The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or point there must be, and there is no mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Lok Sabha or the House of the People, against Shrimati Indira Nehru Gandhi, the Prima Minister of India (hereinafter referred to as 'the Original Respondent'). The election- petitioner is the respondent in Appeal No. 887 of 1975 filed by the original respondent. He is the appellant in Appeal No. 909 of 1975 where the original respondent is the contesting respondent. 388. Before the election case, instituted on April 24, 1971, could be decided by the trial Court, an explanation was added to Section 77(1) of the Act. It had some bearing on questions relating to the expenses incurred on the original respondent's election, sought to be raised by the election- petitioner, but, on findings of fact recorded by the trial Court, it became immaterial for the merits of the case and would continue to be that so long as the election-petitioner is unable to dislodge the trial Court's findings on election expenses. Other amendments were made by the Election Laws (Amendments) Act, 1975 No. 40 of 1975 (hereinafter referred to as the 'Act of 1975'), notified on August 6, 1975, after the decision of the case by the learned Judge of the Allahabad High Court on June 12, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Thirty-ninth Amendment. Speaking for myself, I clearly indicated to learned Counsel for the parties that I regard the nature and merits of the case decided to be of crucial importance not only in considering the validity of the Thirty- ninth amendment and of the Acts of 1974 and 1975, but also in the wider interests of justice which are bound to be served by the vindication of the case of the party which should, on merits, win. Elementary considerations 392. Citizens of our country take considerable pride in being able to challenge before superior courts even an exercise of constituent power, resting on the combined strength and authority of Parliament and the State Legislatures. This Court, when properly called upon by the humblest citizen in a proceeding before it, to test the constitutional validity of eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hirty-ninth amendment, was at all necessary. If that election was not really void an 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 pr 395. If the existence of the judgment of the Allahabad High Court created the impression that it must be assumed to be correct even before this Court had pronounced upon the correctness of the judgment, the stay order given by this Court should have removed it. The legal effect of that stay order was that the trial Court's order, to sue the language of Section 116A(4) of the Act, "shall be deemed never to have taken effect". It did not matter if the stay order, out of deference for existing precedents, had been framed in the form of a "conditioned" stay, that is to say, a stay in law and effect with certain conditions annexed. It was not a "conditional" stay. Indeed, having regard to the nature of the order the operation of which was to be stayed, there could be no "con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance 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 February 1, 1971 and February 25, 1971, and if so, whether this constituted a corrupt practice under Section 123(7) of the Representation of the People Act ? 3. Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the district Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home Secretary of U. P. Government arranged for rostrums, loudspeakers and barricades to be set up and for members of the police force to be posted in connection with her election tour on February 1, 1971 and February 25, 1971; and, if so, whether this amounts to a corrupt practice under Section 123(7) of the Representation of the People Act ? 4. Whether quilts, blankets, dhoties and liquor were distributed by agents and workers of respondent No. 1 with the consent of her election agent Yashpal Kapur, at the places and on the dates mentioned in Schedule A of the petition in order to induce electors to vote for her ? 5. Whether the particulars given in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, 8 and 10, decided in favour of the election- petitioner, were technical and are immaterial now. It will be noticed that the additional issue No. 1, due to some error or oversight, is an exact and unnecessary repetition of the initial issue No. 1. Additional issues numbered 2 and 3 are connected with and subsidiaries of the initially framed issues numbered 1 and 3. 400. The learned trial Judge had accepted the election-petitioner's case of the material issues numbered 1 and 3 of the initially framed issues, and on the overlapping and subsidiary additional issues 1, 2 and 3. He was of opinion that Shri Yashpal Kapur, a Central Government servant and a gazetted officer of the rank of an Under Secretary, deputed to serve in the Prime Minister's Secretariat as an Officer on Special Duty, had held his post until January 25, 1971, when his resignation, tendered on January 13, 1971, was accepted by the President of India with effect from January 14, 1971, by means of a notification published on February 6, 1971. Consequently, the learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; could only arise where such a case of obtaining assistance indirectly through others is set up but not otherwise. 403. 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 procured......... The said Shri Yashpal Kapur on the direction of Smt. Indira Nehru Gandhi organized the electioneering work for her in the constituency during the period commencing from December 12, 1970.........." It is a case of liability resulting from an alleged" direction" given by Smt. Indira Nehru Gandhi herself to Shri Kapur. No case of procurement of assistance of Shri Kapur through a third person is set up although the word "procured" is mechanically lifted from Section 123(7) and used. On issue No. 3, the case set up in para 9 of the petition is that both Smt. Indira Gandhi and her election agent, Shri Kapur, "obtained and procured" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a constructive agent for this particular aid at the time when it is given. The term procurement should, strictly speaking, apply only in the last two types of cases. A reference to Section 100(1) (b) further emphasises the position that a corrup 406. As I read the petition, I find only the first of the three types of cases mentioned above set up exclusively on issue No. 1 because there are no particulars there which could apply to the other two types of cases. Obviously, the case set up was not of a corrupt practice by some act of a person to which the candidate became a party by merely giving consent in which case the circumstances from which the consent was to be inferred had to be indicated. It was a case of a direction given by the Prime Minister herself to Shri Kapur who, it had to be presumed for the purposes of such a case, would not have given the aid if the direction or order was not there. This deliberately given "direction" had to be proved on the case set up. On issue No. 3, the petition mentions only what was obtained, that is to say, the aid of the particular officers and the form it took, but, what caused that aid to be given or the means adopted to get it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing" or attempting or abetting. For Section 123(7) results are immaterial. 410. In the case before us, the petition contains, as I have indicated above, the necessary averment of a deliberate direction by the original respondent herself, so far as issue No. 1 is concerned, and of "obtaining" and "procuring" as regards issue No. 3. These are enough to denote the ingredients of a mens rea. But, one will search the evidence in vain for any indication of a mens rea or guilty intent on the part of the original respondent or of her election agent when she had appointed one. As regards both issues Nos. 1 and 3, the learned Judge seemed to think that Section 123(7) creates what is called an "absolute statutory liability", which does not require a mens rea although, in dealing with issue No. 2, he had himself, after citing the necessary authorities, taken the view that a mens rea was also essential. He had himself, in dealing with issue No. 2, distinguished Dr. Y. S. Parmar v. Hira Singh, a decision with whose ratio decidendi I have never, with due respect, felt happy in so far as it meant 411. Let me here quote the exact language used by the trial Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by this Court, that allegations of corrupt practice in the course of an election must be judged by the same standards as a criminal charge. And, no rule of evidence, in judging guilt on a criminal charge, is more firmly rooted than that no charge, resting on circumstantial evidence, could be held to be proved beyond reasonable doubt unless the chain of circumstances is so complete and so connected with the charge that it leaves no other reasonable hypothesis open for the Court to adopt except that the offender had committed the offence alleged (See : e.g. Smt. Om Prabha Jain v. Charan Das). 413. The learned Judge dealt with evidence on issue No. 1 relating to the activities of Shri Yashpal Kapur by dividing it into three periods : (1) from December 12, 1970 to January 13, 1971, when Shri Kapur had not resigned from government service; (2) from January 14, 1971 to January 25, 1971, the period after Shri Kapur's resignation upto its acceptance by the President of India evidenced by a notification dated January 25, 1971; (3) from January 26, 1971 to February 6, 1971, the period after the acceptance of Shri Kapur's resignation and upto the date of the publication of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad (RW 12), the headmaster of a school, who had denied that he ever accompanied Shri Nankau (PW 28) to the Shaheed Mela as claimed by Nankau. The ground for holding that Shri Sarju Prasad must be deposing falsely appears to me to be every unfair both to Shri Sarju Prasad and Shri Gaya Prasad Shukla, a Congressman, who was suspected, without the slightest foundation in evidence, of having induced Shri Sarju Prasad to give perjured evidence simply because Shri Gaya Prasad, who did not even appear as a witness, was a member of the Congress (R) party and was once connected with the school in which Shri Sarju Prasad served. The learned Judge said : "It is quite likely that once Nankau had conceded in cross-examination that Sarju Prasad had accompanied him to the Shaheed Mela, pressure was brought to bear on Sarju Prasad (RW 12) by Gaya Prasad Shukla in order to make him appear as a witness in the case and give evidence to contradict the testimony of Nankau. It is true that in his re-examination Sarju Prasad (RW 12) admitted that on the date on which he was examined as a witness in the case the school was being run by the Government under the control of the District Basic Edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, consisted mostly of Congress (R) sympathisers. Shri Yashpal Kapur was not so ignorant or inexperienced in election matters and could not be assumed, without any evidence to support the assumption, to 419. Let us, for the sake of argument, assume that Shri Yashpal Kapur had been overpowered by such a desire to exhibit an excessive zeal, which got the better of his prudence that he, believing that a publicly made gesture of his loyalty was needed on this particular occasion, cast all caution to the winds and, while paying the tribute he was called upon to pay to the memory of the martyrs, suddenly decided to jump into the electoral fray by making an appeal at the martyrs' mela to support Smt. Indira Gandhi, as though the speeches of all those local leaders who, in addition to Shri Gulzarilal Nanda, a former Minister, are said to have spoken there to the same effect, were not enough. What follows ? It is here that we find the weakest link in the misty and fanciful chain of the learned Judge's logic. Where was the evidence that, whatever else Shri Yashpal Kapur may or may not have been supposed to do on his visit to Rae Bareli, this particular piece of "frolic", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, that he was a government servant, to go and make a public speech at the mela and canvass for votes for her I do not think that we can indulge in a flight of fancy which could be described as "flamboyant". 423. The uncontroverted evidence of Shri Kapur which had been ignored by the trial Judge was that it was the special business of this witness, as an Officer on Special Duty in the Prime Minister's Secretariat, in his own words, "to deal with the representations received from public and other works of semi-political nature" . It is difficult to understand how the occupant of such a difficult and responsible office as that of the Prime Minister of the numerically largest democracy in the world can possibly discharge his or her duties towards the public satisfactorily without the aid of such officers. Naturally, as the Prime Minister was contemplating standing for election from the Rae Bareli constituency, it would not be outside the scope of the duties of such an officer to attend especially to the complaints and representations from Rae Bareli. He stated that Shri Gulzarilal Nanda, who was then the Railway Minister, had received some representations fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions; and, therefore, he had asked the Prime Minister to be relieved of his office in her Secretariat with effect from January 14, 1971. It is unfortunate that the learned Judge thought that there was something almost sinister in Shri Kapur taking such interest in the election or in hoping to enter political life through absolutely legitimate means. There is not the slightest reason for anyone who fairly examines the evidence of Shri Kapur, supported by that of the Prime Minister and Shri P. N. Haksar, to doubt the motives or the veracity of Shri Kapur on this point. He frankly stated that his ambition was to enter political life. In any case, the motives of Shri Kapur were not on trial. If such assistance as he may have rendered was entirely volun 427. Shri P. N. Haksar was aware of and cited the applicable rule for a resignation by a temporary government servant, as Shri Kapur was, and stated also the practice followed, in his experience, in such cases. He, presumably thought that the resignation was effective from January 14, 1971. Shri Kapur also acted upon that assumption and in that belief. The Prime Minister, who could not be expected to examine suo moto the question whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice) Rules, 1949, which runs as follows : "5(a) The service of a temporary Government servant who is not in quasi- permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. (b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant : Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice or as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 431. The learned Judge had referred to Halsbury's Laws of England, Vol. V (Simonds's Edn.) p. 61, where it was laid down that in a "corporation created by Statute for the discharge of public functions a member may not have an absolute right to resign at will, because the law may cast a duty upon the person elected to a public office to act in that office in public interest" . He also referred to an American ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately after the date on which Shri Kapur had tendered his resignation. That, as already pointed out, was also the date after which he had ceased to work or draw his salary. It is inconceivable that the law should thrust t "(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, 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." 434. I find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not state that Shri Kapur actually made a speech but had said that "a disturbance took place when Shri Kapur wanted to deliver a speech....... as a result of which he could not do so" . The learned Judge rejected the evidence of Shri V. C. Dwivedi (RW 18) supported by Shri Kapur (RW 32) himself, that Shri Kapur was not present at all at this meeting. However, on the evidence of the election petitioner's witness themselves, Shri Kapur could do nothing whatsoever in furtherance of the election of the original respondent at this meeting. 3. On January 19, 1971, Shri Kapur is said to have addressed a meeting at village Nihasta where he is said to have gone in the company of Prof. Sher Singh, a Minister of State in the Government of India. Although the tour programme of the Minister concerned showed that the Minister went to that village to inaugurate a telephone exchange on January 18, 1971, supported by the evidence of Jagannath Prasad (RW 16), a resident of village Nihasta, and K. D. Pandey (RW 17) Post Master, Sub-Post Office, yet, the learned Judge preferred the evidence of Shri R. K. Singh (PW 42) for the election- petitioner despite the infirmity in this eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Kapur is shown to have made a speech supporting the original respondent's candidature. (b) There is no evidence whatsoever from any source that Shri Kapur did so on any of these three occasions either after having been requested by the original respondent to do so or with her knowledge or consent or approval. (c) The only evidence in the case, on the decisive question, coming from the side of the original respondent, is that Shri Kapur did, whatever he did, entirely on his own initiative and in his private and individual capacity, without the slightest solicitation, request, or suggestion from the original respondent who did not even know what he was doing at Rae Bareli. And, this evidence, being uncontroverted, could not be rejected. In fact, it was not rejected by the trial Court. It was ignored by it presumably under erroneous belief that it was not material. 437. There is no evidence whatsoever that Shri Kapur was constructed a sort of general de facto agent of the Prime Minister even before he became her election agent on January 2, 1971. Indeed, such a case, that Shri Kapur was constituted a de facto agent of the Prime Minister, and, if so, what was the scope of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 135 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 consent, express or implied, to work legitimately for the candidate is not deemed sufficient." 440. After January 14, 1971, the Prime Minister, like everyone else concerned, obviously believed that Shri Kapur was no longer a government servant. As I have already pointed out, this was the legally correct assumption. Even if one were to assume, for the sake of argument, that this was not so and that the learned Judge had correctly held that Shri Kapur's resignation became effective from January 25, 1971, there could be no liability for a corrupt practice by merely permitting Shri Kapur to resign. The uncontroverted evidence is that, after resigning, Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 970 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 constitutency. 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." 445. The learned Judge had, in preference to the statement of the Prime Minister herself as to what she meant, together with the evidence given by her Secretariat that there were entreaties or offers to her from other constitutencies that she should be their representative, relied on press reports and what members of other parties thought and did as a result of the above-mentioned statement of the Prime Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sa 448. 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 Bareli constituency. If such a question had been asked there is little doubt that she could have explained the statement by the context in which it was made, just as she had given the precise meaning of her statement of December 29, 1970, in the context in which it was made. Apparently, the context of the statement made in early January in Coimbatore was that the opposition parties had chosen a candidate, who, in the opinion of Prime Minister, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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. 451. It is significant that despite the large number of speeches and statements the Prime Minister must have made throughout the country, in this period, not a single statement made by her could even be cited in which she had said before February 1, 1971, that she was standing as a candidate from the Rae Bareli constituency. It is possible, as I have indicated above, that this may be a part of the political game or permissible party tactics so as to keep opposition parties guessing. It seems to me that the learned Judge was overlooking the context, the probabilities, the natural course of events in such a case, the legal and logical relevance and effect of what he thought was deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" . 456. The view of the learned Judge appears to me to run counter to the weight of authorities cited above. In any case, if there was any uncertainty at all in the law, it was been removed nu an amendment by Section 7 of Act No. 40 of 1975 so that Section 79(b) reads as follows : "'Candidate' means a person who has been or claims to have been duly nominated as a candidate at any election" . 457. Learned Counsel for the election-petitioner contended that this amendment read with Section 10 of the Act 40 of 1975, would retrospectively alter the "rules of the game" and would be destructive of the concept of free and fair elections, if it means that a person is only a candidate after he has been duly nominated and that he can indulge in any amount of corrupt practices until the day previous to his nomination. 458. Even if the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first set of issues which, after rejecting the contention that the erection of barricades and the provision of the police force for security purposes by the Government of U. P., during the election tours of the Prime Minister on February 1, 1971 and February 25, 1971 in the Rae Bareli constituency, contravened Section 123(7), the learned Judge held that, neverthless the arrangements made by the District Magistrate of Rae Bareli, the Superintendent of Police, Rae Bareli, the Executive Engineer, P. W. D. and Engineer, Hydel Department, for constructing rostrums and the supply of power for loudspeakers, on the instructions given by the State Government, was a corrupt practice struck by the provisions of Section 123(7) of the Act. As I have already indicated, by the only evidence relied upon by the learned Judge for this extraordinary finding, after having rejected a similar allegation of a corrupt practice under issue No. 2, on account of provision of the Air Force pla "It has been noticed that the rostrum arrangements are not always properly made because the hosts are sometimes unable to bear the cost. As the security of the Prime Minister is the concern of the State, all arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary official business even if the candidate concerned knows that the State Government is bound, under the rules, to make the necessary arrangements dictated by the needs of security of the Prime Minister and convenience of the public. 465. The view of the learned Judge involves holding that the "persona"(a term derived from the concept of the mask worn by Greek actors on the stage in a drama) of a candidate during an election must not only be different from that of the Prime Minister, but also that, when the two capacities are held by the same person, what is due to the occupant of the office of the Prime Minister must be withdrawn when the same person acts as a candidate. On a similar argument, with regard to use of helicopters and aeroplanes, the learned Judge himself had refused to acknowledge what amounts to a separable legal personality of a candidate in the eyes of law. The ground given for this difference between the use of aeroplanes and helicopters by the Prime Minister and the use of rostrums by her was that the former was more connected with the office or capacity of the Prime Minister and that the latter was exclusively meant for her use in the capacity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be shown, on the evidence on record, before a candidate can be held guilty of a corrupt practice. In Sheopat Singh v. Ram Pratap, this Court held, in dealing with the allegation of corrupt practice under Section 123(4) of the Act, that mens rea was a necessary ingredient of the corrupt practice practice and that the doctrine of constructive knowledge was not applicable here. 470. In the case before us, the election-petitioner alleged a wrongfully "obtained and procured" assistance due to acts of the original respondent as well as her election agent Shri Yashpal Kapur. Hence, proof of actual mens rea as well as actus reus on the part of either the candidate herself or her election agent had to be given. This was not done. The election petition was, therefore, liable to be rejected on this ground alone. 471. If, however, there was any doubt or uncertainty on the matter, the view taken by the learned Judge had, at any rate, directed the attention of Parliament to the need for a clarification of the law which became necessary. It is not possible to object to the movies behind the legislation on this ground. Parliament could certainly set right a defect in law which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the validity of Section 123(7) of the Act as it existed before the amendment. Hence, there could be no challenge to the validity of the amendment if it does not, as I think it does not, change the law but merely clarifies it. 475. Learned Counsel for the election-petitioner contended that, as a candidate at an election, Prime Minister and an ordinary candidate should enjoy equal protection of the laws and should be afforded equal facilities irrespective of the office occupied by one of two or more candidates. Such an attack upon the validity of this amendment seems to me to be possible only under the provisions of Article 14 of the Constitution. But, as Act 40 of 1975 has been placed by Section 5 of the Thirty-ninth Amendment in the protected Ninth Schedule of the Constitution, it becomes immune from such an attack. After the practically unanimous opinion of this Court in Kesavananda Bharati's case (supra), that such an immunisation of an enactment from an attack based upon an alleged violation of the chapter on fundamental rights is constitutionally valid, I do not think that a similar attack can be brought in through the backdoor of a "basic structure" of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby, introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically scared public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed, election petitions were corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which are concluded."This Court also said there (at p. 672) : " We regard it as extremely unsafe, in the present climate of Kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Nagindas Doshi, Baijnath Singh Vaidya v. R. P. Singh, Bishambhar Dayal v. Raj Rajeshwar, Dinesh Dangi v. Daulat Ram, Shyam Lal v. Mansa Din, B. P. Mauriya v. Prakash Vir Shastri, Sahodra Rai v. Ram Singh Ahawar, Vishwanath Pd. v. Salmatullah, Lachiram v. J. P. Mukhariya. 482. In addition, Section 8 of the Act 40 of 1975 has made the position on this point also very clear by providing that, in Section 123 of the Act in clause (3), the following proviso shall be inserted at the end : "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." 483. As in the case of other amendments, the amendment was also challenged on behalf of the election-petitioner on the ground that it could be misused. I am afraid that attacks made on such sweeping suggestions of likelihood of misuse, in future, cannot possibly succeed. It has been repeatedly laid down by this Court that the possibility of misuse of a power given by a statue cannot invalidate the provision conferring the power. (See : Dr. B. N. Khare v. State of Delhi; State of West Bengal v. Anwar Ali Sarkar; R. K. Dalmia v. Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase before us, two main questions and one subsidiary question, each of which is a mixed question of fact and law, which deserve consideration by the Court on this issue, have been raised before us. I will deal with these questions briefly seriatim. 487. The first question is : If the party, which a candidate represents, spends or others also spend some money on his or her election, is this expenditure one which can be or should be properly included in the statement of election expenses submitted by the candidate? Arguments before us have proceeded on the assumption made by both sides that some expenditure was incurred by Congress (R) party and some expenditure must also have been incurred by those who either voluntarily helped or even thrust their supposed assistance, whether it was helpful or not, upon those managing the original respondent's election, which was not shown as part of her election expenses. Is the successful candidate bound, under the law, to show this also as part of election expenses? 488. The question assumed special importance after the decision of this Court in Kanwar Lal Gupta v. Amarnath Chawla, where a Division Bench of this Court observed : (SCC p. 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond mere interpretation of the law as it exists. It is clear from the passages cited and later parts of the judgment that the earlier decision of this Court, requiring proof of authorisation by the candidate of the election expenditure for which he could be held responsible, and, in particular, Rananjaya Singh v. Baijnath Singh, which I shall refer to again a little later, are considered. It is enough to observe that the passages quoted above rest on the assumption that, where there are special circumstances in a case which constitute a political party an implied agent of the candidate himself, the candidate will be responsible. It was also suggested there that a political party itself must exercise some control over the expenses of the candidate 491. The difficulty which faces the election-petitioner at the outset in taking up a case of implied authorisation, on the strength of anything observed or decided by this Court in Kanwarlal Gupta's case (supra), is that no such case was set up here. The petition does not say that the local Congress (R) party was really an express or implied agent of the original respondent or that it had acted in a manner from which it could be infe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra)." Explanation 1. Notwithstanding any judgment, order or decision of any court to the contrary, 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 any 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 authorized by the candidate or by his election agent for the purposes of this sub-section : Provided that nothing contained in this Explanation shall effect. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the original respondent's election agent, and sent to the District Officer, Rae Bareli, stating as follows :" Sir, I beg to say that the District Congress Committee, Rae Bareli has taken the following cars for election purposes in the three parliamentary constituencies, Rae Bareli, 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 abovesaid cars may kindly be released without delay. The letter of the President of District Congress Committee about the abovesaid cars is enclosed herewith ". The letter of the President of the committee, mentioned by Shri Kapur, was a rather urgent request made to him by Shri Dal Bahadur Singh, on February 24, 1971 (Ex. A-43), after informing him that he is in difficulties as he had tried to find out unsuccessfully the whereabouts of Shri V. Vajpayee, who was contesting election from Amethi parliamentary constituency, and of Shri Baiznath Kureel, who was contesting the election from Ram Sanehi parliamentary constituency. He, therefore asked Shri Kapur, the election agent of the original respondent, to send ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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" . 501. In Samant N. Balkrishna 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 in so far as the returned candidate is concerned was materially affected" . 502. However, as I have already held, there is no case or evidence before us that the Congress party was the agent, express or implied, of the original respondent or acting as the channel through which any money whatsoever was spent by the original respondent. The petition could not possibly succeed on the ground of exceeding election expenses. On the other hand, on the findings given by me above, the expenses on the construction of rostrums were also erroneously added by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 505. 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 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 Thirty-ninth Constitutional Amendment. 506. 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" . 507. What is alleged by the election-petitioner is that the opposition members of Parliament, who had been detained under the preventive detention law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -" 329A. (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 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the "basic structure" or "the essential features" of our Constitution. It was submitted that the amendment is invalid on an application of tests laid down by a majority of the 13 Judges who indicated certain basic and inviolable principles of our Constitution in Kesavananda Bharati's case (supra). It was contended that the newly added Article 329A of the Constitution, far from constituting a constitutional law, which alone could be made under Article 368, did not even satisfy the tests of a law, inasmuch as it did 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 513. All the contentions of learned Counsel for the election-petitioners, apart from the alleged procedural defect in amending the Act of 1951 and the Constitution when a number of opposition members of Parliament are detained under the preventive detention was, already dealt with by me, seemed directed towards producing two results either simultaneously or alternatively : firstly, to persuade u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, 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) 516. At the same time, it was contended, and this was especially emphasised by Mr. Jagannath Kaushal, that Parliament and the ratifying Legislatures of the States - participating in the Constitution-making process - had not applied any pre-existing norms but had merely declared and registered, almost automatically, without any need to consider anything further or to apply any law whatsoever to any facts, what followed from the abrogation of all pre-existing law, with its procedure and norms, so far as the election- petition against the original respondent was concerned. This meant that the constituent bodies, proceeding on the assumption that the High Court had rightly held the original respondent's election to be invalid by applying the provisions of the 1951 Act, had considered it necessary to validate what really was invalid according to the 1951 Act. In view of what I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra). The new argument now advanced to use the language of the Solicitor General in his last written submissions, is that the power of amendment under Article 368 is" the very original power of the people which is unbroken into the legislative and the executive and the judicial ". He submitted that the implied limitations, to which the majority decision in Kesavananda Bharati's case (supra) has committed this Court for the time being, are no longer available when considering the "unbroken" power. Mr. A. K. Sen, learned Counsel for the original respondent, puts this very argument in the following words in his written submissions :" In the hands of the constituent authority there is no demarcation of powers. But the demarcation emerges only when it leaves the hands of the constituent authority through well defined channels into demarcated pools. The constituent power is independent of the fetters or limitations imposed by separation of powers in the hands of the organs of the Government amongst whom the supreme authority of the State is allocated. The constituent power is independent of the doctrine of separation of powers. Separation of powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule the majority view in Kesavananda Bharati's case (supra). The majority view in that case, which is binding upon us, seemed to be that both the supremacy of the Constitution and separation of powers are parts of the basic structure of the Constitution. 522. If "constituent power", by itself, is so transcendental and exceptional as to be above the provisions of the Constitution itself, it should not, logically speaking, be bound even by the procedure of amendment prescribed by Article 368(2). I have not found any opinion expressed so far by any learned Judge of this Court to show that the constituent power is not bound by the need to follow the procedure laid down in Article 368(2) of the Constitution. Indeed, rather inconsistently with the theory of an absolute and unquestionable power in some undifferentiated or raw and unfettered form, operating from above and outside the Constitution, learned Counsel, supporting the impugned fourth clause in Article 329A, concede that the constituent power is bound by the appropriate procedure laid down in Article 368 for the amendment of the Constitution. What they urge is that, subject to this procedure, which has been followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as possible, is that they are "emotive" or of a kind about which Mr. Leonard Schapiro, (writing on "Key Concepts in Political Science" Series, at p. 7) rightly observed." Emotive words such as 'equality', 'dictatorship', 'elite' or even 'power' can often, by the very passions which they raise, obscure a proper understanding of the sense in which they are, or should be, or should not be, or have been used. Confucius regarded the 'rectification of names' as the first task of government.'If names are not correct, language will not be in accordance with the truth of things', and this in time would lead to the end of justice, to anarchy and to war. "At any rate, in America, the concept of State sovereignty, ranged against that of national sovereignty, did produce a civil was which is said to have been precipitated by the decision of the American Supreme Court in Dred Scott v. Standford 179. 525. I must preface my observation here about the concept of "sovereignty" and exercise of "sovereign power", between which I make a distinction, with two kinds of explanation. The first kind involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arons or even bullies and criminals, ordinary mortals have sought the protection of those who could give it because of their superior physical might. No book or document could provide them with the kind of help they needed. They looked up to their "Sovereign liege and Lord", as the medieval monarch was addressed by his subjects, for protection against every kind of tyranny and oppression. 528. The Greeks and Romans were not troubled by theories of "sovereignty" in a State. The principle that Might was Right was recognised as the unquestioned legally operative principle at least in the field of their constitutional laws. Greek philosophers had, however, formulated a theory of a Law of Nature which was, morally, above the laws actually enforced. In later stages of Roman law, Roman jurists also, saturated with Greek notions of an ethically superior law of nature, said that the institution of slavery, which gave the owner of a slave theoretically absolute powers of life and death over the slave, just like the powers of a pater-familia over his children, was contrary to just natural although it was recognised by jus gentium, the laws of then civilised world. Aristot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dharma, based on the authority of the assemblies of those who were learned in the Dharmashastras, also completed for control over exercise of royal secular power. High philosophy and religion, however, often seem to have influenced and affected the actual exercise of sovereign power and such slight law-making as the King may gave attempted. The ideal King, in ancient India, was conceived of primarily as a Judge deciding cases or giving orders to meet specific situations in accordance with the Dharmashastras. It also appears that the actual exercise of the power to administer justice was often delegated by the King to his judges in ancient India. Indeed, according to some, the theory of separation of powers appears to have been carried so far (See : K. P. Jayaswal in "Manu and Yajnavalkya"- A b 532. We know that Semetic prophets, as messengers of God, also became rulers wielding both spiritual and political temporal power and authority although to Jesus Christ, who never sought temporal power, is ascribed the saying :" Render unto Caesar the things that are Caesar's and to God things that are God's ". According to the theory embodied in this saying, spi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s distinct from these"(See : Dunning's" History of Political Theories Ancient & Medieval "p. 28). Hobbes, a century later continued this line of thinking on an entirely secular and non-moral plane. He opined :" Unlimited power and unfettered discretion as to ways and means are possessed by the sovereign for the end with a view to which civil society is constituted, namely, peace and escape from the evils of the state of nature", in which the life of individuals was" nasty, brutish, an 536. As we know, in the 17th and 18th centuries, European monarchs came in sharp conflict with the representatives of their subjects assembled in "Parliament" in England and in the "State-General" in France. And, theories were put forward setting up, as against the claims of kings to rule as absolute sovereigns by indefeasible divine right, no lesser claims to inviolability and even divinity of the rights of the people. But, theories apart, practice of the art of government proves that the effective power to govern by the very nature of conditions needed for its efficient exercise, has had to be generally lodged in one or few especially in times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A New Social Analysis" p. 187)" are negative : It does not insure good government, but it prevents certain evils". He pointed out (at p. 188) : " It is possible, in a democracy, for the majority to exercise a brutal and wholly unnecessary tyranny over a minority....... The safeguarding of minorities, so far as is compatible with orderly Government, is an essential part of the taming of power." He also said (at p. 192) : " Where democracy exists, there is still need to safeguard individuals and minorities against tyranny, both because tyranny is undesirable in itself, and because it is likely to lead to breaches of order. Montesquieu's advocacy of the separation of legislative, executive and judiciary, the traditional English belief in checks and balances, Bentham's political doctrines and the whole of nineteenth century liberalism, were designed to prevent the arbitrary exercise of power. But such methods have come to be considered incompatible with efficiency ". 540. Some quite honest, upright, and intelligent people think that the inefficiency, the corruption, the expense, the waste of time and effort, and the delay in accomplishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, as the titular sovereign, and those of the House of Commons, as representing the people, was still going on. In strict law, which was unwritten, the position on that problem of power was not suite clear at that time. The episode is thus described by Lord Denman, C.J. in Stockdale v. Hansard 180 (at p. 1163)." The next case to which I advert in truth embraced no question of privilege whatever; but, as one of the highest authorities in the State has thought otherwise, I shall offer some comments upon it; I mean Fay v. Topham. The House of Commons ordered the defendant, their sergeant at-arms, to arrest and imprison the plaintiff for having dared to exercise the common right of all Englishmen, of presenting a petition to the King on the state of public affairs at a time when no Parliament existed. For this imprisonment an action was brought. The declaration complained, not only of the personal trespass, but also of extortion of the plaintiff's money practiced by defendant under colour of the Speaker's warrant. The plea of justification under that warrant, which could not possibly authorise the exertion, even if it could the arrest, was overruled by this Court, no do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvalidate Acts of Parliament if they contravened rules of natural justice such as that a man shall not be heard before he is condemned or that he should be a judge in his own cause. As Ivor Jennings points out, in an appendix to "The law and the Constitution"(5th Edn., 1959, p. 318) the theory of parliamentary sovereignty or supremacy could, by no means, be said to be firmly established in England in Coke's time. 546. 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 times : 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). 547. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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. 551. Under our Constitution, by Article 141 of the Constitution, power is vested only in the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Third Schedule indicating that the duty to uphold the "sovereignty and integrity of India" from a recognition of the supremacy of the 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. "554. 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;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 document itself is a personal ruler. This accords with our own ancient notions of the law as "The King of Kings" and the majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means. 558. 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 "sovereign" as the human ruler. Modern theories of even political sovereignty advanced by the Pluralist School - e.g. Gierke, Duguit, McIver, Laski - look upon it as divisible and not as absolute and unlimited. Indeed they go to the extent of practically denuding sovereignty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver explained (See : Fundamental Tasks of Soviet Law 1938) that Soviet" law can no more be reduced simply to policy than cause can be identified with effect". Strict observance of" Socialist Legality ", under the supremacy of the Constitution, is entrusted to the care of the State, with its three organs, the Communist Party, and the people of the U. S. S. R. (See : "The Soviet Legal System" by M/s. John N. Hazard and Issac Shapiro). Although Article 15 of the Constitution of the U. S. S. R. speaks of the "Sovereignty and Sovereign Rights" of the Union Republic, yet, it is made clear that these republic 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 561. Gierke made a wide survey and a penetrating analysis of juristic thinking upto the end of the 10th 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is implicity 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. 563. 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, 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 philosophers and jurists, including those of Bodin, Hegel, 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of justice whose love was planted in man by Him. In Cooper v. Wandsworth Board of Works, 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? Has thou not eaten of the tree whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also." 565. 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 distinction between them. Even Willoughby, dealing with constitutionalism (Willoughby on "Nature of the State" 198, at p. 302) says : "The value of constitutional government is not that it places sovereignty in the hands of the people, but that it prescribed definite ways in which this sovereign power sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd respectable to swear allegiance 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. 567. 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; Dred Scott v. Sandford) and at others towards a recognition of the dual system of Government which has prevailed in America (See : e.g. Gibbus v. Ogden) has, on the whole opted, of the "Sovereignty of the People" which unifies the nation (See e.g. White v. Heart, Keith v. Clark; National Prohibition Cases). 568. I cannot, while I am on the subject of American conditions, resist the temptation to quote the trenchan 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 570. 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 1964, where Gajendragadkar, C.J., speaking for six learned Judges of this Court said (at p. 446) :" In a democratic country governed by a written 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed propounder of the doctrine of the sovereignty of Parliament, had criticized Austin for frequently mixing up "legal sovereignty" and "political sovereignty"(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 statesmen 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 1 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that it was not necessary, for the purposes of that case, whether the amending 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 Twenty-fourth Amendment. It does not use the words "constituent power" were advisedly use 576. The "constituent power" is still bound by the exclusively prescribed procedure to "amend by way of addition, variation, or repeal" any 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 (supra), 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 Twenty-fourth Amendment, was, apparently, meant to remove this objection and to do no more. It could be intended to pour some new amalgam of executive and judicial or quasi-judicial substantive powers into it also by some implication so as to do away with the very need for such an elaborate and carefully drawn up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner of exercise of such powers if any. Jurists, however, have also occupied themselves with these problems partly because constitutional law, as Dicey once pointed out, has some overlapping territory with the political theory which underlies it. Some constitutional lawyers, such as Ivor Jennings, have said that it is flirtation with political theory which has brought into the juristic fold a term such as 'Sovereignty'. On the other hand, political theorists, such as McIver, have blamed, far less justly, jurists like Austin for infecting political theory with legalistic authoritarian notions of sovereignty. Political theorist, in their attempts to understand and rationalize, and sometimes to justify or condemn a system are more concerned 580. I do not think that it is at all helpful to refer to certain authorities of this Court which were, rather surprisingly, relied upon by learned Counsel supporting the Thirty-ninth Amendment to discover the nature of the "constituent power" contained in Article 368. I will content myself by citing a passage from the last of these cases relied upon which mentions the earlier cases of this Court also on the effect of a "fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Legislature of the dominion was recognised as the constituent assembly of the dominion." These powers were" plenary" in the sense in which this term is used in Queen v. Burah, but they were confined to law-making and did not extend to adjudication or decision of individual cases which is certainly distinguishable from a law-making power. For purposes other than framing of the Constitution, provisions of the Government of India Act operated until they were repealed and replaced by other relevant provisions. Such was the process of a legislative succession through which institutional transformation or transition to a new but corresponding set of institutions was brought about. In the eyes of law, this was an evolutionary process through constitutional channels and not a revolutionary break with the past. 583. I is true that, in the exercise of the law-making constituent power, brought in by Section 8 of the Indian Independence Act, the Legislatures could be armed with judicial powers as well if appropriate laws were made to that effect. But, as no law, either constitutional or ordinary was passed, preceding Thirty-ninth Amendment to repeal the Act or 1951 and then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the binding force of a constitutionality prescribed procedure. It could not be circumvented unless, with reference to cases covered by Article 329A(4), it had been first repealed. Only after such a repeal could any other forum or procedure be legally adopted. It could not be assumed, by reason of Article 105(3), that the prescribed forum had shifted to Parliament itself, and that Parliament, in exercise of its constituent function, had both legislated and adjudicated. This is what we were asked to accept. 587. The well recognised rule of construction of statutes, which must apply to the interpretation of the Constitution as well, is : "Expressio unius est exclusio alterius". From this is derived the subsidiary rule that an expressly laid down mode of doing something necessarily prohibits the doing of that thing in any other manner. The broad general principle is thus summarised in Crawford's "Statutory Constructions"(1940) at p. 334 : "Express Mention and Implied Exclusion (Expressio unius est exclusio alterius. - As a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. It therefore logic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reason why the House of Commons itself saw the need for entrusting to a rota of High Court judges, the jurisdiction at one time exercised by it directly to determine its election disputes, is found thus stated by Blackstone, quoting Erskine May's "Parliamentary Practice and Procedure"(at pp. 153-155) : "For a considerable time after the House had obtained this jurisdiction, controverted elections were tried by committees specially nominated, composed of privy councillors and burgesses, well qualified for the duties entrusted to them. But after 1672, it became an open committee, in which all who came had voices, and at length a hearing at the bar of the House was considered preferable to an inquiry by a committee. Here again, to use the words of Sir Erskine May," the partiality and injustice of the judges was soon notorious. Parties tried their strength........ the friends of rival candidates canvassed and maneuvered, and seats corruptly gained, were as corruptly protected or voted away. Such were the results of the usurpation of judicial functions by a popular body ". In order to remedy, if possible, these unquestionable evils, the statute 10 Geo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until he has consulted the Common Pleas division of the High Court, in which these proceedings are instituted, is final to all intents and purposes; the House of Commons being bound to" give the necessary directions for confirming or altering the returns or for issuing a writ for a new election, or carrying such determination into execution as circumstances may require ". And this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our inquiries into the laws and customs more peculiarly relative to the House of Commons." 591. I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval "High Court of Parliament" in England, that a judicial power also devolved upon our Parliament through the Constituent Assembly, mentioned in Section 8 of the Indian Independence Act of 1947. As already indicated by me, the Constituent Assembly was invested with law-making and not judicial powers. Whatever judicial power may have been possessed once by English King, sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judicial power to interpret and to determine the ambit of its own jurisdiction. Gajendragadkar, C.J., speaking for this Court in Special Reference No. 1 of 1964 (supra), rejected this claim and explained the English law on the subject. The learned Chief Justice pointed out the incidental character of any claim to a power, privilege, or immunity which could be covered by Article 194(3), a provision identically similar to Article 105(3). He pointed out that the only exception to this rule was the power to punish for its own contempt which, since the decision of Privy Council in Kielley v. Carson, could be thought of as a power of the House of Commons even acquired as a kind of "inheritance" from the powers once possessed by the High Court "I do not think that the House of Commons was itself ever a court. The history of that House does not support such a contention." The result is similar to that in England where courts do determine the orbit of a claim to a power as a parliamentary preserve, on the facts of a case, although, once it is established that the claim is to a power confined to its proper sphere, they will not decide a mere question of its proper exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Shankari Prasad case, Sajjan Singh Case and the minority views of five learned Judges in Golak Nath case were in favour of the view that Article 368 contained the power of amendment and that power was the constituent power to change the fundamental law, that is to say, the Constitution and is distinct from ordinary legislative power. So long as this distinction is kept in mind Parliament will have the power under Article 368 to amend the Constitution 596. On the other hand, learned Counsel defending the Thirty-ninth Amendment relied on a number of passages from various judgments, including mine, in Kesvananda Bharati's case (supra), indicating that at least the minority view there was that the power of amendment contained in Article 368, was only limited by the procedure laid down in Article 368(2) of the Constitution and nothing else. It is true that this is what was emphasized by several learned judges, including myself, in dealing with a case where the real question was whether the constituent power embraced an amendment of the Constitution in such a way as to take away fundamental rights. But, neither the question whether "constituent power" itself contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the original respondent as well as by the election-petitioner, and the operation of the High court's order having been suspended, the position was 600. At one stage, Counsel supporting the Thirty-ninth Amendment said that the norms of the Act of 1951, together with the amendment of the Act in 1974 and the very recent ones of 1975, must have been present in the minds of members of Parliament and applied to the facts of the case. Such a contention, apart from overlooking the effect of the bar of Article 329(b), which operated against the case being taking up in Parliament directly until at lest August 10, 1975, just as Section 107 of the British Representation of People Act, 1949, operates against the adoption of such a course in England, overlooked the legal effect of the deeming provision which, if valid, would repel such a submission of counsel supporting the Thirty-ninth Amendment. The deeming provision appeared to be quite sweeping. It said :" 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 601. The effect of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident shall be determined by a forum as may be determined by a parliamentary law. Similar provision is proposed to be made in the case of the election to either House of Parliament or, as the case may be, to the House of the people of a person holding the office of Prime Minister or the Speaker. It is further proposed to render pending proceedings in respect of such election under the existing law null and void. The bill also provides t 603. I think that this Statement of Objects and Reasons and other reasons mentioned above by me lend support to the submission, to which Mr. Kaushal confined himself whilst other counsel supporting the validity of Article 329A (4) offered it only as an alternative submission. This was that the whole procedure adopted and needed being a law-making procedure and nothing more there was no need to look for norms or for law applied as no judicial or quasi-judicial proceeding was involved. This approach certainly avoids the extraordinary anomalies and results involved in the proposition that "constituent power" embraces some indefinable or "unbroken" power to override laws and to withdraw and decide all disputes, particularly in ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hhindwara v. The Central Provinces Syndicate Ltd.; Municipal Corporation of the City of Ahmedabad 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. 607. Cases were also cited of the exercise of constitutional power of amendment, by placing Acts in the Ninth Schedule, under the provisions of Article 31B of the Constitution, such as Jagannath v. Authorised Officer, Land Reforms, (supra) so that Acts so included in the Ninth 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 Bharati's Case (supra). 608. Our attention was especially invited to passages from Udai Ram Sharma v. Union of India (supra), where it was said (at page 54) :" 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 poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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." 612. 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 relying on principles laid down in Queen v. Bura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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's Statutes of England p. 467) and Section 2 of the Re-election of Ministers Act, 1919 (ibid. p. 515). Great stress was laid on the word 'declared' in Article 191 (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." 614. 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 Clerk George, Esquire, and Sir Roland Jennings, Knight, by the British Parliament. Here, the two gentlemen named above were "discharged, freed and indemnified from all penal consequences whatsoever incurred by them respectively by sitting or voting as members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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. "618. On the other hand, learned Counsel supporting the validity of Article 329A (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 establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, legislative and executive control, land, in effect, left untouched the judicial system established by the Character of Justice, 1833. The silence of the Constitution as to the vesting of judicial power was consistent with its remaining where it was and 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. "621. 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 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 provision. According to the majority view in Kesavananda Bharati' case (supra), we can find the test primarily in the preamble to our Constitution. 622. A po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra), were Chief Justice Marshall said (at p. 162) :" The very essence of civil liberty 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 used in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3rd volume 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'. "625. 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 116A of the Act of 1951 is also a creature of statute and can be taken away retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Act of 1951, the second set arises because of impugned clauses of the Thirty-ninth Amendment. For the second set of grievances, the action complained of is that of the State itself acting through its law-making organs. It is because of this interes 628. Indeed, so far as the original respondent is concerned, the effect of clauses (4), (5) and (6) of Article 329A would be, if we were to hold that they bar our jurisdiction to go into the merits of the appeals under Section 116A 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 prevented from doing justice to her case as well if we were to accept the contention that the Thirty-ninth Amendment bars our jurisdiction to hear the appeals under Section 116A of the Act on merits. The total effect would be that justice would appear to be defeated even if, in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended 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 a 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 unequivocably 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 context. Even if it was possible to go beyond the statement of objects and reasons and to hold 632. 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 possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 636. 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 findings contained in it to be void and of no effect whatsoever. It is not necessary for me to add that the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r; (3) She and her election agent made appeals to the religious symbol of cow and calf; (4) Her election agent and others procured vehicles for the free conveyance of voters to the polling stations; and (5) She and her election agent incurred or authorised expenditure in violation of Section 77(3) of the Act read with Rule 90 of the Conduct of Elections Rules, 1961. These grounds having been rejected by the High Court, the defeated candidate has filed Appeal No. 909 of 1975. The first two grounds were given up in appeal for the reason that the evidence on record was not likely to be accepted by this Court in proof thereof. 642. The defeated candidate did not lead evidence in the High Court to show that any part of the expenditure in excess of the permissible limit of ₹ 35, 000 was incurred by the successful candidate or her election agent. His contention was that the expenditure incurred for her election by the political party which had sponsored her candidature, the Congress (R), was liable to be included in the expenses incurred or authorised by her. This contention was founded on a decision rendered by a Division Bench of this Court on October 3, 1974, in Kanwar Lal Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the successful candidate from the decision of the Allahabad High Court. It also takes care of a considerable gamut of the appeal filed in this Court by the defeated candidate. It substitutes a new Section 8-A in the Representation of the People Act, 1951 empowering the President to decide whether a person found guilty of corrupt practice shall be disqualified and if so, for what period. By Section 6, it amends Section 77 of the Act of 1951 making pre-nomination expenses a matter of irrelevant consideration. It declares that the expenditure incurred by a government servant in the discharge of his official duty in connection with any arrangements or facilities and such arrangements or facilities shall not be deemed to be expenditure or assistance incurred or rendere 646. The amendments brought about by Act 58 of 1974 and Act 40 of 1975 have an incisive impact on the cross-appeals but their edge was blunted by the Constitution (Thirty-ninth Amendment) Act, 1975 which came into force on August 10, 1975. The Thirty-ninth Amendment introduces two new articles in the Constitution : Article 71 and 329A; and it puts in the Ninth Schedule three Acts : (i) The Representation of the People ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called by virtue of a law to be passed under entry 97 of List I, could abridge or take away the fundamental rights. The Parliament, in a resolve to re-affirm its powers, passed the Constitution (Twenty-fourth Amendment) Act on November 5, 1971. By the Twenty-fourth Amendment, the Parliament amended Articles 13 and 368 of the Constitution so as to provide that nothing contained in Article 13 shall apply to any amendment of the Constitution made under Article 368 and that notwithstanding anything in the Constitution, Parliament may, in the exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution in accordance with he procedure laid down in Article 368. As an instance of the 650. A Bench of thirteen Judges of this Court sat to consider the constitutionality of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. The eleven judgments delivered in that case are reported in Kesavananda Bharati v. State of Keral, commonly known as the Fundamental Rights case. Golak Nath's case (supra) stood overruled as a result of the decision in this case. But six learned Judges out of the thirteen (Sikri, C.J., and Shelat, Grover, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smiss a government servant or the power to declare war which are executive powers cannot be exercised by the Constituent Assembly. Similarly, it cannot, in the guise of amending the Constitution, provide that an accused arraigned before a criminal court shall be acquitted and shall be deemed to be innocent. The constituent body can make changes in the conditions of the exercise of judicial power but it cannot usurp that power; and lastly (ix) The question in the Fundamental Rights case was whether Parliament can, in the exercise of its power of amendment abridge 653. Learned Counsel appearing for the Union of India and for Smt. Indira Gandhi did not dispute the contention that the appeals before us must be disposed of on the basis of the law laid down by the majority in the Fundamental Rights case. 654. The learned Attorney General contended that : (i) The majority decision in the Fundamental Rights case is not an authority for the proposition that there could be no free or fair elections without judicial review. The Constitutions and laws of several countries leave the decision of election disputes to the judgment of the Legislatures themselves. The history of the Representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter is not pending in appeal, then the judgment ceases to be operative and binding as res judicata. (iv) The rendering of a judgment ineffective by changing its basis by legislative enactment is not an encroachment on judicial power but a legislation within the competence of the Leg 657. Shri Jagannath Kaushal supported the arguments of Shri Sen by citing pragmatic illustrations. He gave interesting statistics showing that a very small percentage of election petitions succeed eventually which, according to him, is evidence that such petitions are used by defeated candidates as an instrument of oppression against successful candidates. Parliament, therefore, wanted to save high personages from such harassment. A law may benefit a single individual and may still be valid. According to Shri Kaushal, the judgment of the Allahabad High Court became a nullity by reason of that Court ceasing retrospectively to have jurisdiction over the dispute and a judgment which is a nullity need not be set aside. It can (sic cannot) even be challenged in a collateral proceeding. 658. I thought it only fair to indicate broadly the line of approach adopted by the various learned Counsels to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate individual and the dispute concerning it cannot ever be a matter of constitutional amendment. Whether this contention is sound is another matter but I do not see the force of the argument of the Attorney-General that in view of the decisions in Sankari Prasad's case (supra), Sajjan Singh's case (supra) and the Fundamental Rights case (supra), the contention is not open to be taken. The question raised by Shri Shanti Bhutan was not raised or considered in either of the three aforesaid cases and I do not see how the question can be shelved. The argument is not new facet of the theory of inherent or implied limitations on the amending power, in which case it might have been plausible to contend that the last word was said on the subject by the Full Court in the Fundamental Rights case. The question now raised touches a totally new dimension of the amending power : Can the Constituent As me Court to frame rules for regulating its practice and procedure, official language for communication between one State and another and last but not the least, elections to the Parliament and the State Legislatures. Those to whose wisdom and judgment the constituent power is confided, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the nation. Hegde and Mukherjea, JJ. added sovereignty of India as a f 664. I consider it beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of the Constitution, they are that : (i) India is a sovereign democratic republic; (ii) Equality of status and opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion and that (iv) the nation shall be governed by a Government of laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars, therefore, of the basic structure of the Constitution. 665. I find it impossible to subscribe to the view that the preamble of the Constitution holds the key to its basic structure or that the preamble is too holy to suffer a human touch. Constitutions are written, if they are written, in the rarefied atmosphere of high ideology, whatever be the ideology. Preambles of written Constitutions are intended primarily to reflect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d first in a tribunal consisting of three members and later in a tribunal consisting of a single member who was to be a sitting District Judge. The decisions of those tribunals could eventually be brought before the Supreme Court under Article 136(1) of the Constitution but it is at least plausible that we 668. In England, prior to 1770, controverted elections were tried by the whole House of Commons as mere party questions but in order "to prevent so notorious a perversion of justice", the House consented to submit the exercise of its privilege to a tribunal composed of its own members. In 1868, the jurisdiction of the House to try election petitions was transferred by statute to the courts of law. A parliamentary election petition is now tried by two judges from out of there puisne judges of the Queen's Bench Division who are put on the rota for trial of such petitions by selection every year by a majority of votes of the judges of that division. At the conclusion of the trial, the Court must forthwith certify the determination to the Speaker. The determination, upon such certification, is final to all intents and purposes. Thus, in England, the election Court is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r parts of the world, those that stake their claim to 'democracy' because we are not concerned to find whether despite the Thirty-ninth Amendment we are still not better off, democratically, than many others. The comparison has to be between the per Thirty-ninth Amendment period and the post-Thirty-ninth Amendment period in the context of our Constitution. 674. "Those of us who have learned humility have given over the attempts to define law" . This statement of Max Radin may be used to express a similar difficulty in defining 'democracy' but just as legal scholars, not lacking in humility, have attempted to define 'law', so have political scientists attempted a satisfactory definition of 'democracy'. The expression is derived from the Greek work 'demos', which was often used by the Greeks to describe the many, as distinct from the few, rather than the people as a whole. And Aristotle defined democracy as the rule of the poor, simply because they formed, always and necessarily, the more numerous class. But the word is commonly used "in the sense of the rule of the majority of the community as a whole, including 'classes&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to all its citizens equality of status and opportunity finds its realization in an ampler measure in Article 14 which guarantees equality before the law and the equal protection of laws to all persons, citizens and non-citizens alike. Equality is the faith and creed of our democratic republic and without it, neither the Constitution nor the laws made under it could reflect the common conscience of those who owe allegiance to them. And if they did not, they would fail to command respect and obedience without which any Constitution which, without a true nexus, denies equality before the law to its citizens may in a form thinly disguised, contain reprisals directed against p 678. Article 329A(4) makes the existing election laws retrospectively inapplicable, in a very substantial measure, to the parliamentary elections of the Prime Minister and the Speaker. The inapplicability of such laws creates a legal vacuum because the repeal, so to say, of existing laws is only a step-in-aid to free the election from the restraints and obligations of all election laws, indeed of all laws. The plain intendment and meaning of clause (4) is that the election of the two personages will be beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctrine of classification and no 681. It follows that clauses (4) and (5) of Article 329A are arbitrary and are calculated to damage or destroy the rule of law. Imperfection of language hinder a precise definition of the rule of law as of the definition of 'law' itself. And the Constitutional Law of 1975 has undergone many changes since A. V. Dicey, the great expounder of the rule of law, delivered his lectures as Vinerian Professor of English Law at Oxford, which were published in 1885 under the title, "Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be said with reasonable certainty that the rule of law means that the exercise of powers of government shall be conditional by law and that subject to the exceptions to the doctrine of equality, no one shall be exposed to the arbitrary will of the Government. Dicey gave three meanings to rule of law : Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land the source but the consequence of 682. The argument directed at showing the invalidation of the Thirty-ninth Amendment on the ground that it abrogates the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or keeping the three organs of the State within the strict confines of their functions. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v. Ryan, the principle of separation of powers "is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today 685. The truth of the matter is that the existence, and the limitations on the powers of the three departments of government are due to the normal process of specialisation in governmental business which becomes more and more complex as civilization advances. The Legislature must make laws, the Executive enforce them and the Judiciary interpret them because they have in their respective fields acquired an expertise which makes them competent to discharge their duly appointed functions. The Moghal Emperor, Jehangir, was applauded as a reformist because soon after his accession to the throne in 1605, he got a golden chain with sixty bells hung in his palace so that the common man could pull it and draw the attention of the ruler to his grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeatedly brought it home), that discretion is the better part of valour" . Courts have, by and large, come to check their valorous propensities. In the name of the Constitution, the Parliament may not also turn its attention from the important task of legislation to deciding court cases for which it lacks the expertise and the apparatus. If it gathers facts, it gathers facts of policy. If it records findings, it does so without a pleading and without framing any issues. And worst of all, if it decide 689. The Parliament, by clause (4) of Article 329A, has decided a matter of which the country's courts were lawfully seized. Neither more nor less. It is true, as contended by the learned Attorney-General and Shri Sen, that retrospective validation is a well-known legislative process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy cases and variety of other matters. In fact, such validation was resorted to by the Legislature and upheld by this Court in at least four election cases, the last of them being Kanta Kathuria v. Manak Chand Surana. But in all of these cases, what the Legislature did was to change the law retrospectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations. 693. No objection can accordingly be taken to the constitutional validity of the two impugned Acts on the ground that they damage or destroy the basic structure. The power to pass these Acts could be exercised retrospectively as much as prospectively. 694. These Acts effectively put an end to the two appeals before us for they answer the totality of the objections which were raised by Shri Raj Narian against the election of Smt. Indira Gandhi. The basis of the findings on which the High Court held against the successful candidate is removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments introduced by that Act, the High Court could not have held that the election is vitiated by the two particular corrupt practices. In regard to the cross-appeal filed by Shri Raj Narain, Shri Shanti Bhushan thought that a part of it escapes through the crevices in the Act but I see no substance in that contention either. I would like to add that the findings recorded by the High Court in favour of Smt. Indira Gandhi are amply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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