PETITIONER: NARAYAN BHASKAR KHARE Vs. RESPONDENT: THE ELECTION COMMISSION OF INDIA(and connected petition) DATE OF JUDGMENT: 03/05/1957 BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER DAS, S.K. KAPUR, J.L. GAJENDRAGADKAR, P.B. SARKAR, A.K. CITATION: 1957 AIR 694 1957 SCR 1081 ACT: President, Election of-Doubts and Disputes relating to such election-jurisdiction and Power of Supreme Court, when can be exercised-'Election' Meaning of-Constitution of India, Arts. 71, 62-The Presidential and Vice-Presidential Election Act, 1952 (XXXI Of 1952), s. 14. HEADNOTE: The petitioners entertained grave doubts as to the propriety of holding the Presidential election before the general elections had been completed throughout the entire territory of India and, by applications filed under Art. 71(1) of the Constitution as citizens of India, invoked the jurisdiction and power of the Supreme Court thereunder to inquire into such doubts and sought for an order restraining the Election Commission from taking the poll in connection with the election of the President, fixed for May 6, 1957, till the general elections in the Union territory of Himachal Pradesh and in two Lok Sabha Constituencies of the State of Punjab, which were still to be held, had been completed. The expiry of the term of office of the then President which caused the Presidential election was to come about on the mid-night of May 12, 1957. One of the petitioners alleged that he was a candidate for the Presidential election and the time intervening between the date when he received his nomination paper and the date fixed for the filing of it was too short to enable him to file it within time and the case of the other was that he was a prospective candidate for election to the Lok Sabha from one of the Punjab Constituencies, where election was yet to be held, and would be prevented from exercising his right to vote for the election of the President. Held, that the present petitions were premature and must be dismissed. ^ The jurisdiction and power conferred on the Supreme Court by Art. 71(1) of the Constitution to inquire into and decide doubts and disputes arising out of and in connection with the election of the President can be exercised only after a particular candidate has been declared elected and on an election petition filed under S. 14 of the Presidential and Vice-Presidential Election Act of 1952. The word 'election' in Art. 71 of the Constitution is used in the wider sense to denote the entire process of election culminating 139 1082 in a candidate being declared elected and doubts and disputes arising out of and in connection with such election must include all doubts and disputes relating to any particular stage of it. N. P. Ponnuswamy v. Returning Officer, Namakkal Constituency, (1952) S.C.R. 218, referred to. It is a well recognised principle of the law of election that an election cannot be held up to facilitate the ventilation of individual grievances in derogation of the interest of the people in general and Art. 62 Of the Constitution, which requires that the election of President must be completed within the time fixed by it and has been conceived in such interest, is mandatory in character, JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 63 and 64 of 1957.
Petitions under Article 71(1) of the Constitution of India
for clarification of doubts in connection with the election
of the President.
R. V. S. Mani and I. R. V. Sastri, for the petitioner in
Petition No. 63 of 1957.
R. Patnaik, for the petitioner in Petition No. 64 of 1957.
M. C. Setalvad Attorney-General for India, G. N. Joshi,
Porus A. Mehta and R. H. Dhebar, for the respondents
(Caveators) in both the petitions.
1957. May 3. The Judgment of the Court was delivered by
DAS C. J.-The petitioners in the above petitions have moved
this Court to exercise the jurisdiction and power vested in
it by and under Art. 71(1) of the Constitution of India and
to inquire into and decide what has been described as a
“grave doubt” in connection with the election of the
President of India and to direct the Election Commission not
to proceed with the polling in connection with the said
election which has been fixed for May 6, 1957, but to hold
the same after duly completing all the elections to the Lok
Sabha and the Legislatures in all the States of the Indian
Union including the Union territory. The first main
petition was presented on April 26, 1957, and the second on
April 29, 1957. Along with each of the said petitions has
been filed a Civil Miscellaneous Petition asking for a stay
of the polling for the Presidential election fixed
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for May 6, 1957. In the first main petition the Returning
Officer has not been made a party, but in the second
petition he has been impleaded as a respondent. The learned
Attorney-General has appeared on behalf of the Election
Commission and has waived the service of notice. We can,
therefore, dispose of all the petitions before us.
There is no dispute as to the material facts which may
shortly be stated as follows:
After the general elections in all the States and Union
territories of India, except in the Union territory of
Himachal Pradesh, which is to return four members to the Lok
Sabha and in two constituencies in the State of Punjab, the
old Lok Sabha was dissolved on April 4, 1957 and the New Lok
Sabha was constituted on April 5, 1957, under s. 73 of the
Representation of the People Act (XLIII of 1951). As
required by s. 4 of the Presidential and Vice-Presidential
Election Act, 1952 (XXXI of 1952), the Election Commission
issued a notification in the official Gazette appointing
April 16, 1957, as the last date for making nominations,-
April 17, 1957, as the date for the scrutiny of the
nominations, April 20, 1957, as the last date for the
withdrawal of candidatures, May 6, 1957, as the polling date
and May 10, 1957, as the date for the counting of the votes
and the declaration of the result. The term of office of
the present President is due to expire on the mid-night of
May 12, 1957. The reason for fixing the above time schedule
obviously was that the Presidential election should be
completed before the term of office of the present President
expired.
After the notification constituting the new Lok Sabha was
published in the Press on April 7, 1957, the petitioner in
the first petition applied to the Election Commission for
the supply of the nomination papers, which he eventually
received at Nagpur in the afternoon of April 10, 1957. This
left a period of five days for the filing of the nomination
paper before the Returning Officer at New Delhi. The
petitioner submits that the time was too short and he was
prevented from filing his nomination paper due to want of
time. He
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has filed the petition as a citizen of India and as an
“intending candidate” for the Presidential election.
The petitioner in the second petition is a member of the
Hindu Mahasabha and is contenting the election to the Lok
Sabha as an independent candidate from Kangra Parliamentary
constituency in the State of Punjab. He filed his
nomination paper on January 28, 1957, as originally the
polling was scheduled to commence in that constituency on
February 24, 1957. The polling, however, has since been
postponed and fixed for June 2, 1957. He has filed the
petition as a citizen of India and as a prospective member
of Lok Sabha and contends that if the Presidential election
is held on May 6, 1957, he will be deprived of his right to
vote for the election of the President of the Union. He has
also complained of discrimination offending against Art. 14
of the Constitution.
Under Art. 56 of the Constitution the President holds office
for a term of five years from the date on which he enters
upon his office. The present incumbent of the high office
entered upon his office on May 12, 1952, and, as already
stated, his term is due to expire on the mid-night of May
12, 1957. Article 62(1) peremptorily requires that the
election to fill the vacancy caused by the expiration of the
term of office of the President shall be completed before
the expiration of the term. It is necessary to bear in mind
this clear mandatory provision of the Constitution. For
ascertaining how such election of President is to be held,
we have to go back to Art. 54, which runs thus:
” 54. The President shall be elected by the members of an
electoral college consisting of-
(a) the elected members of both Houses of Parliament ; and
(b) the elected members of the Legislative Assemblies of
the States.”
On one side it is said that the electoral college is to
consist of those members falling under clauses (a) and (b),
who are elected at the crucial date, that is to say, the
date when the election is to take place. Suppose, it is
said, that the term of the President’s office expires during
the currency of the life of Parliament; as it
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may well do in cases contemplated by Art. 62(2) and suppose
there are vacancies in Parliament or in the Legislature of
one or more States, surely the election of the President
required by Art. 62(1) to be held before the expiry of the
term of the outgoing President cannot be held up until the
vacancies are filled up.’ On the other hand it is contended
that the electoral college must be constituted after the
elections in all States and Union territories are completed
and should consist of all the elected members falling within
both the categories. Inasmuch as elections have not taken
place at all in Himachal Pradesh and in two constituencies
of the State of Punjab, the electoral college cannot be
constituted until after those members are also elected. It
is pointed out that though on the present occasion only four
members of Himachal Pradesh and only two members in the
State of Punjab have not been elected, nevertheless, if the
objection of the petitioners is not now heeded any party in
power may in future arrange for the election of its own
nominee as President by postponing the elections in several
States, where it may not expect to get a majority of seats.
It is said that on March 28, 1957 some members of the then
Lok Sabha had raised a question as to the danger and
impropriety of holding the election of the President before
the completion of the elections throughout the territory of
India. Both the petitioners share the same view and contend
that a ” grave doubt ” has arisen in connection with the
election of the President and that such a doubt must, under
Art. 71, be inquired into and decided by this Court. The
extreme contention put forward on behalf of the petitioners
is that it does not matter whether the doubt is well founded
or not or whether it is good, bad or indifferent; this Court
is bound to inquire into and decide the same as soon as a
doubt arises and a citizen brings it before this Court for
resolution thereof. For the purpose of this case it is not
necessary for us to express any opinion on the merits of the
respective contentions for these petitions may well be
disposed of on a narrower preliminary ground.
1086
Article 71 (1) Undoubtedly confers jurisdiction and power on
this Court to inquire into and decide ” all doubts and
disputes arising out of or in connection with the election
of President or Vice-President ” and this Court will have to
inquire into and decide the same. But the question is
whether there is anything in the Constitution indicating the
time at which and the manner in which such doubts and
disputes have to be inquired into and decided. Under Art.
324 the superintendence, direction and control of the prepa-
ration of the electoral rolls for, and the conduct of, all
election,% to Parliament and to the Legislature of every
State and of elections to the office of President and Vice-
President held under this Constitution, including the
appointment of election tribunals for the decision of doubts
and disputes arising out of or in connection with elections
to Parliament and the Legislatures of States shall be vested
in the Election Commission. It will be noticed that
identical words are used, namely, ” doubts and disputes
arising out of or in connection with elections ” which are
also to be found in Art. 71 (1). By Art. 327, Parliament
was authorised to make provision with respect to all matters
” relating to or in connection with elections ” to
Parliament or to the Legislatures of the States. Art. 329
provides, amongst other things, that notwithstanding
anything in this Constitution no election to either House of
Parliament or either House of Legislature of a State shall
be called in question except by an election Petition
presented to such authority and in such manner as may be
provided for by or under any law made by the proper
legislature. In exercise of powers thus conferred on it,
Parliament enacted the Representation of the People Act,
1951, providing how elections are to be held and how and on
what grounds such elections may be called in question. It
also set up a special forum called Election Tribunal for the
decision of ” doubts and disputes arising out of or in
connection with such elections.” In N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency (1) the Returning
Officer for that constituency had rejected, the
(1) (1952) S.C.R. 218.
1087
nomination paper of the appellant. Thereupon the appellant
applied to the High Court of Madras under Art. 226 of the
Constitution for a writ of certiorari to quash the order of
the Returning Officer rejecting his nomination paper and to
direct the Returning Officer to include his name in the list
of valid nominations to be published. The High Court of
Madras dismissed the petition and the appellant brought an
appeal to this Court. The Full Court held that in view of
the provisions of Art. 329 (b) of the Constitution and s. 80
of the Representation of the People Act, 1951, the High
Court had no jurisdiction to interfere with the order of the
Returning Officer. The main controversy in the appeal
centered round the words “no election shall be called in
question except by an election petition ” occurring in Art.
329 (b). The most important question for determination by
this Court was the meaning to be given to the word ”
election ” in Art. 329 (b). This Court said at page 226:
“That word has by long usage in connection with the process
of selection of proper representatives in democratic
institutions, acquired both a wide and a narrow meaning. In
the narrow sense, it is used to mean the final selection of
a candidate which may embrace the result of the poll when
there is polling or a particular candidate being returned
unopposed when there is no poll. In the wide sense, the
word is used to connote the entire process culminating in a
candidate being declared elected.”
After referring to the cases of Srinivasalu v. Kuppuswami
(1) and Sat Narain v. Hanuman Prasad (2 ) and a passage in
Halsbury’s Laws of England, 2nd edition, Volume 12, page
237, this Court took the view that the word “election ”
could be and had been properly used with respect to the
entire process which consisted of several stages and
embraced many steps some of which might have an important
bearing on the result of the process and, therefore, held
that in view of the provisions of Art. 329 (b) of the
Constitution and s. 80 of the Representation of the People
Act, 1951, the High Court had no jurisdiction to interfere
with the
(1) A.I.R. (1928) Mad. 253, 255.
(2) A.I.R. (1945) Lah. 85.
1088
order of the Returning Officer under Art. 226. The only way
such an order could be called in question was as laid down
in Art. 329 (b) of the Constitution and s. 80 of the
Representation of the People Act, 1951, and this could be
done only by an election petition presented before the
Election Tribunal after the entire process of election
culminating in a candidate being declared elected had been
gone through. On such election petition being filed the
Election Tribunal would be properly bound to inquire into
and decide “all doubts and disputes arising out of or in
connection with the election ” irrespective of the stage in
the entire election process to which the ” doubts and
disputes relate”. We now approach the construction of Art.
71 in the light of the decision of this Court.
As already indicated Art. 71(1) confers jurisdiction and
power on this Court to inquire into and decide id all doubts
and disputes arising out of or in connection with the
election of a President or Vice-President”. The question
is: Is there in this Article or in any other part of the
Constitution or anywhere else any indication as to the time
when such inquiry is to be held ? In the first place, Art.
71 postulates an ” election of the President or Vice-
President ” and provides for inquiry into doubts and
disputes arising out of or in connection with such an
election. What is the meaning to be given to the word ”
election ” as used in this Article? If we give to the word
,election” occurring in Art. 71(1) the same wide meaning as
comprising the entire election process culminating in a
candidate being declared elected, then clearly the inquiry
is to be made after such completed election, i.e., after a
candidate is declared to be elected as President or Vice-
President as the case may be. We see no reason why this
accepted meaning should not be given to the critical word.
In the second place, under cl. 3 of Art. 71, subject to the
provisions of this Constitution, Parliament may by law
regulate any matter ” relating to or connected with the
election ” of a President or Vice-President. The words here
also are similar to those used in Art. 327 and are equally
wide enough to cover matters relating to or
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connected with any stage of the entire election process. In
exercise of powers conferred on it by Art. 71(3), Parliament
has enacted the Presidential and Vice-Presidential Election
Act, 1952 (XXXI of 1952) to regulate certain matters
relating to or connected with elections to the office of
President and Vice-President of India. A glance through the
provisions of this Act will indicate that in the view of
Parliament the time for the exercise of jurisdiction by this
Court to inquire into and decide doubts and disputes arising
out of or in connection with the Presidential election is
after the entire election process is completed. Under s. 14
of this Act, which corresponds to s. 80 of the
Representation of the People Act, 1951, no election, meaning
the election of the President or Vice-President, shall be
called in question except by an election petition presented
to this Court in accordance with the provisions of Part III
of that Act and of the rules made by this Court under Art.
145. Section 18, which lays down the grounds for declaring
the election of a returned candidate to be void, runs as
follows:
18. Grounds for declaring the election of a returned
candidate to be void:-If the Supreme Court is of opinion-
(a) that the offence of bribery or undue influence at the
election has been committed by the returned candidate or by
any person with the connivance of the returned candidate; or
(b) that the result of the election has been materially
affected-
(i) by reason that the offence of bribery or undue
influence at the election has been committed by any person
who is neither the returned candidate nor a person acting
with his connivance; or
(ii)by the improper reception or refusal of a vote, or
(iii)by the non-compliance with the provisions of the
Constitution or of this Act or of any rules or, orders made
under this Act; or
(c) that the nomination of any candidate has been wrongly
rejected or the nomination of the successful candidate or of
any other candidate who has
140
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not withdrawn his candidature has been wrongly accepted;
the Supreme Court shall declare the election of the returned
candidate to be void.
(2) For the purposes of this section, the offences of
bribery and undue influence at an election have the same
meaning as in Chapter IX-A of the Indian Penal Code (Act XLV
of 1860).
It is quite clear from the language of the section that any
improper reception or refusal of a vote, or any non-
compliance with the provisions of the Constitution or of the
Act or of any rules or orders made under the Act or the
improper acceptance or rejection of a nomination paper may
be made a ground for challenging the election. This means
that all doubts and disputes relating to any stage of the
entire election process is to be canvassed by an election
petition presented to this Court after the election in its
wide sense is concluded.
The above stated interpretation appears to us to be in
consonance with the other provisions of the Constitution and
with good sense. If doubt or dispute arising out of or in
connection with the election of a President or Vice-
President can be brought before this Court before the whole
election process is concluded then conceivably the entire
election may be held up till after the expiry of the five
years’ term which will involve a no-compliance with the
mandatory provisions of Art. 62. The well recognised
principle of election law, Indian and English, is that
elections should not be held up and that the person
aggrieved should not be permitted to ventilate his
individual interest in derogation of the general interest of
the people, which requires that elections should be gone
through according to the time schedule. It is, therefore,
in consonance both with the provisions of Art. 62 and with
good sense to hold that the word “election” used in Art. 71
means the entire process of election. That is what
Parliament understood to be the meaning of Art.,, 71 as is
apparent from the Presidential and Vice-Presidential
Election Act, 1952. Again this Court has framed rules under
Art. 145 to regulate the
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procedure and a perusal of those rules will also indicate
that ” all doubts and disputes arising out of or in
connection with the election of a President or Vice-
President ” should be brought before the court after the
result of the entire election is declared, that is to say,
after a candidate is declared to be elected to the office of
President or Vice-President.
It is pointed out that if the petitioners are compelled to
wait until after the entire election process is concluded
and then to file election petitions, they will have to show
that the result of the election has been materially affected
as required by s. 18 of the Presidential and Vice-
Presidential Election Act, 1952. It is contended that there
is no reason why this extra, burden or hardship, which is
not in terms imposed by Art. 71, should be placed upon the
petitioners. It is not necessary for the purposes of
disposing of these petitions to express any opinion as to
the validity or otherwise of this requirement of s. 18 and
we do not do so. But the plea of alleged hardship brought
about by s. 18 cannot alter the true meaning and import of
Art. 71. In our judgment Art. 71 postulates an election and
the word “election ” occurring in Art. 71 means the entire
election process culminating in a candidate being declared
elected and doubts and disputes arising out of or in
connection with any of the stages of such completed election
have to be inquired into and decided by this Court which, in
point of time, must necessarily be after the completion of
the entire process compendiously called the election.
Learned counsel appearing for the petitioner in the second
petition raised an additional point that the Election
Commission by fixing the election on May 6, 1957, has
arbitrarily deprived the members representing territorial
constituencies like Kangra and Himachal Pradesh of their
right to exercise and enjoy other privileges of membership
of Parliament. This argument was raised half heartedly at
the fag end of his argument in reply and was not seriously
pressed. In any event he did not advance any cogent
argument showing how the petitioner had been deprived of the
equal protection of the law. Elections have to be held in
numerous
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constituencies and different dates have to be fixed for
holding the actual elections in different constituencies
according to the various exigencies relating to the
particular localities in which the constituencies are
situate. No good ground has been established for holding
that there has been any discrimination such as is prohibited
by Art. 14 of the Constitution. In so far as the alleged
discrimination, if any, in breach of the equal protection
clause of the Constitution may be said to be calculated to
raise any doubt in connection with the election of the
President it will, at best, be a noncompliance with the
provisions of the Constitution which may or may not, after
the conclusion of the entire election, be made a ground,
under s. 18 of the Presidential and Vice-Presidential
Election Act, 1952, for calling the election in question as
to which we need formulate no final opinion at this stage.
We express no opinion on the merits of any of the
controversies between the parties, but, for the foregoing
reasons, we hold that the present petitions are premature
and cannot be entertained at this stage. We, therefore,
dismiss the petitions Nos. 63 and 64 of 1957. Civil
Miscellaneous Petitions Nos. 563 and 564 of 1957 will also
stand dismissed.
Petitions dismissed.