PETITIONER:
JYOTI BASU & OTHERS.
Vs.
RESPONDENT:
DEBI GHOSAL & OTHERS.
DATE OF JUDGMENT26/02/1982
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
PATHAK, R.S.
CITATION:
1982 AIR 983 1982 SCR (3) 318
1982 SCC (1) 691 1982 SCALE (1)115
CITATOR INFO :
F 1983 SC1311 (7,16)
R 1984 SC 135 (8)
RF 1985 SC 150 (26)
E 1985 SC1133 (20)
F 1987 SC1577 (14)
ACT:
Representation of the People Act 1951, Ss. 82 and 86
(4) Election Petition-Parties to-Who are-Corrupt practice
alleged against person who is not a candidate-Such person
whether can be impleaded as respondent.
Election Law-Right to elect-Neither fundamental right
nor Common Law right-Statutory right subject to statutory
limitations.
Code of Civil Procedure 1908 Or.1 r. 10-Concept of
'proper parties'-Applicability of to election petitions.
HEADNOTE:
The Representation of the People Act 1951, by Section
81 prescribes who may present an election petition. It may
be by any candidate at such election, by any elector of the
constituency, and by none else. Section 82 clause (a)
provides that the petitioner in an election petition shall
join as respondents to the petition the returned candidates
if the relief claimed is confined to a declaration that the
election of all or any of the returned candidates is void
and all the contesting candidates if a further declaration
is sought that he himself or any other candidate has been
duly elected. Clause (b) of the section requires the
petitioner to join as respondents any other candidate
against whom allegations of any corrupt practice are made in
the petition. Section 86 (4) enables any candidate not
already a respondent to be joined as respondent.
The first appellant in the appeal is the Chief Minister
and appellants 2 and 3 State Ministers. They had been
impleaded by the first respondent as parties to an election
petition filed by him in the High Court questioning the
election of the second respondent to the House of the
People. It was averred in the election petition that the
Chief Ministers and the State ministers who were impleaded
as parties to the election petition had colluded and
conspired with the returned candidate to commit various
alleged corrupt practices. The Chief Minister and the other
Ministers denied the commission of the various alleged
corrupt practices and claimed that the election petitioner
was not entitled to implead them as parties to the election
petition, as they were not candidates at the election. They
filed an application before the High Court to strike out
their names from the array of parties in the election
petition. It was dismissed on the ground that the appellants
were proper parties to the election petition and therefore
their names could not be struck out of the array of parties,
319
In the appeal to this Court, it was contended on behalf
of the appellants that the concept of a proper party was not
relevant in election law and that only those persons could
be impleaded as parties who were expressly directed to be so
impleaded by the Representation of the People Act 1951, and
that they were entitled to be struck out from the array of
parties. On behalf of the first respondent it was submitted
that the appellants were proper parties to the election
petition and their presence was necessary for a complete,
final and expeditious decision on the questions involved in
the action.
Allowing the Appeal,
^
HELD: 1. No one can be joined as a party to an election
petition otherwise than as provide by Section 82 and 86 (4)
of the Representation of the people Act 1951. A person who
is not a candidate may not be joined as a respondent to the
election petition [331 C-D]
In the instant case the names of the appellants and the
7th respondent in the appeal are directed to be struck out
from the array of parties in the election petition. [331 D]
2. A right to elect, fundamental though it is to
democracy, is, anomalously neither a fundamental right nor a
Common Law Right. It is a statutory right. So is the right
to be elected, and the right to dispute an election. Outside
of statute, there is no right to elect, no right to be
elected, and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory
limitation. An Election petition is not an action at Common
Law, nor in equity. It is a statutory proceeding to which
neither the Common Law nor the principles of Equity apply
but only those rules which the statute makes and applies. It
is a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statute
creating it. Concepts familiar to Common Law and Equity must
remain strangers to Election Law unless statutorily
embodied. A Court has no right to resort to them on
considerations of alleged policy because policy in such
matters, as those, relating to the trial of election
disputes, is what the statute lays down. In the trial of
election disputes, Court is put in a straight jacket. [326
F-H; 327 A-B]
3. The contest of the election petition is designed to
be confined to the the candidates at the election. All
others are excluded. The ring is closed to all except the
petitioner and the candidates at the election. Such is the
design of the statute. [328 C]
4. While clause (b) of section 82 obliges the
petitioner in an election petition to join as a respondent
any candidate against whom allegations of any corrupt
practice are made in the petition, it does not oblige the
petitioner to join as a respondent any other person against
whom allegations of any corrupt practice are made. While any
candidate not already a respondent may seek and, if he so
seeks, is entitled to be joined as a respondent under
section 86 (4), any other person cannot, under that
provision seek to be joined as a respondent, even if
allegations of any corrupt practice are made against him.
[328 A-C]
320
5. The concept of `proper parties' is and must remain
alien to an election dispute under the Representation of the
People Act, 1951. Only those may be joined as respondents to
an election petition who are mentioned in section 82 and
section 86 (4) and no others. However desirable and
expedient it may appear to be none else shall be joined as
respondents. [328 D]
6. The provisions of the Civil Procedure Code cannot be
invoked to permit that which the Representation of the
People Act 1951 does not permit. The Civil Procedure Code
applies subject to the provisions of the Representation of
the People Act 1951 and any rule made thereunder. Section 87
(1) expressly says so . When the Act enjoins the penalty of
dismissal of the petition for non-joinder of a party the
provisions of the Civil Procedure Code cannot be used as a
curative means to save the petition. [328 F-H; 329 A-C]
Mohan Raj v. Surendra Kumar Taparia & Ors. [1961] 1 SCR
and R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi &
Ors. [1969]1 SCR 679, referred to.
7. Parliament has expressly provided that an
opportunity should be given to a person who is not a
candidate to show cause against being 'named' as one guilty
of a corrupt practice. Parliament, however, has not thought
fit to expressly provide for his being joined as a party to
the election petition either by the election-petitioner or
at the instance of the very person against whom the
allegations of a corrupt practice are made. The right given
to the latter is limited to show cause against being 'named'
and that right opens up for exercise when, at the end of the
election petition notice is given to him to show cause why
he should not be 'named'. The right does not extend to
participation at all stages and in all matters, a right
which he would have if he is joined as a 'party' at the
commencement. [329 E-G]
8 (i) The election petitioner cannot by joining as a
respondent a person who is not a candidate at the election
subject him to a prolonged trial of an election petition
with all its intricacies and ramifications. [329-G]
(ii) Mischievous minded persons may harass public
personages like the Prime Minister of the country, the Chief
Minister of a State or a political leader of a national
dimension by impleading him as a party to election
petitions. All that would be necessary is a seemingly
plausible allegation, casually or spitefully made, with but
a facade of truth. To permit such a public personage to be
impleaded as a party to an election petition on the basis of
a mere allegation, without even prima facie proof an
allegation which may ultimately be found to be unfounded,
can cause needless vexation to sush personage and prevent
him from the effective discharge of his public duties. It
would be against the public interest to do so. The ultimate
award of costs would be no panacea in such cases, since the
public mischief cannot be repaired. Public Policy and
legislative wisdom both point to an interpretation that the
provisions of the Representation of the People Act 1951 does
not permit the joining, as parties of persons other than
those mentioned in sections 82 and 86 (4). [329 H; 330 A-D]
321
9 (i) The legislative provisions contained in section
99 enables the Court, towards the end of the trial of an
election petition, to issue a notice to a person not a party
to the proceedings to show cause why he should not be
'named' is a sufficient clarification of the legislative
intent that such person may not be permitted to be joined as
a party to the election petition. [330 E-F]
9 (ii) If a person who is not a candidate but against
whom allegations of any corrupt practice are made is joined
as a party he would also be entitled to 'recriminate' under
section 97. Such a construction of the statute would throw
the doors of an election wide open and convert the petition
into a 'free for all' fight. The necessary consequence would
be an unending, disorderly election dispute with no hope of
achieving the goal contemplated by sec. 86 (6) of the Act
that the trial of the election petition should be concluded
in six months.
[330 H; 331 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1553 of
1980.
Appeal by special leave from the judgment and order
dated the 3rd July, 1980 of the Calcutta High Court in
Election Petition Case No. 1 of 1980.
Somnath Chatterjee, Rathin Das and Aninda Mitter for
the Appellants.
Sidhartha Shankar Ray, R.K. Lala and T.V.S.N. Chari for
Respondent No. 1.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The first appellant, Jyoti Basu, is
the Chief Minister and appellants two and three Budhadeb
Bhattacharya and Hashim Abdul Halim, are two Ministers of
the Government of West Bengal. They have been impleaded by
the first respondent as parties to an election petition
filed by him questioning the election of the second
respondent to the House of the People from the 19-
Barrackpore Parliamentary Constituency in the mid-term
Parliamentary election held in January, 1980. There were
five candidates who sought election from the Constituency.
Mod. Ismail, the first respondent, whose candidature was
sponsored by the Communist Party of India (Marxist) was,
elected securing 2,66,698 votes as against Debi Ghosal, a
candidate sponsored by the Indian National Congress led by
Smt. Indira Gandhi who secured 1,62,770 votes. The other
candidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan
Mishra secured 25,734, 12,271 and 2,763 votes respectively.
The first respondent filed an election petition in the High
Court of
322
Calcutta questioning the election of the second respondent
Mohd. Ismail on various grounds. He impleaded the returned
candidate as the first respondent, and the other three
unsuccessful candidates respondents 2, 3 and 4 to the
election petition. Besides the candidates at the election,
he impleaded several others as respondents. The District
Magistrate and Returning Officer was impleaded as the fifth
respondent, Buddhadeb Bhattacharya, the Minister for
Information and Publicity, Government of West Bengal as the
sixth respondent. Jyoti Basu, the Chief Minister as the
seventh respondent, Md. Amin, the Minister of the Transport
Branch of the Home Department as the eighth respondent,
Hashim Abdul Halim, the Minister of the Legislative and the
Judicial Department as the ninth respondent and the
Electoral Registration Officer as the tenth respondent. It
was averred in the election petition that the Chief Minister
and the other Ministers of the Government of West Bengal who
were impleaded as parties to the election petition had
colluded and conspired with the returned candidate to commit
various alleged corrupt practices. Apart from denying the
commission of the various alleged corrupt practices, the
Chief Minister and the other Ministers claimed in their
written statements that the election petitioner was not
entitled to implead them as parties to the election
petition. They claimed that as they were not candidates at
the election they could not be impleaded as parties to the
election petition. The Chief Minister and two of the other
Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya
filed an application before the High Court of Calcutta to
strike out their names from the array of parties in the
election petition. The application was dismissed by the
Calcutta High Court on the ground that the applicants
(appellants) were proper parties to the election petition
and, therefore, their names should not be struck out of the
array of parties. The appellants have preferred this appeal
after obtaining special leave of this Court under Art. 136
of the Constitution.
Shri Somnath Chatterjee, learned counsel for the
appellant submitted that the concept of a proper party was
not relevant in election law and that only those persons
could be impleaded as parties who were expressly directed to
be so impleaded by the Representation of the People Act,
1951. He claimed that in any case such persons were entitled
to be struck out from the array of parties. On the other
hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned
counsel for the first respondent submitted that the
appellants were proper parties to the election petition and
their presence was
323
necessary for a complete, final and expeditious decision on
the questions involved in the action.
To properly appreciate the rival contentions it is
necessary to refer to the relevant provisions of the
Constitution of India and the two Representation of the
People Acts of 1950 and 1951.
First the Constitution. Part XV deals with elections.
Art. 324 vests in the Election Commission the
superintendence, direction and control of the preparation of
the Electoral rolls and the conduct of all elections to
Parliament and to the Legislatures of the States. Art. 325
provides that there shall be one general electoral roll for
every territorial constituency and that no person shall be
ineligible for inclusion in such rolls on grounds only of
religion, caste, sex or any of them. Art. 326 provides that
election to the House of the People and to the Legislative
Assemblies of States shall be on the basis of adult
franchise. Art. 327 enables Parliament to make laws with
respect to all matters relating to elections to either House
of Parliament or to the Houses of the Legislature of a
State. Art. 328 enables the Legislature of a State, if
Parliament has not made such legislation, to make laws with
respect to all matters relating to elections to the Houses
of the Legislature of the State. Art. 329 bars interference
by Courts in electoral matters and clause (b), in
particular, provides that no election to either House of
Parliament or to the House or either House of the
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 appropriate legislature.
Next, the Representation of People Act, 1950. This Act
provides for the delimitation of the Constituencies for the
purpose of elections to the House of the people and the
legislatures of States, the qualification of voters at such
elections, the preparation of electoral rolls and other
matters connected therewith.
Last, the Representation of the People Act of 1951,
Part VI of the Act deals with “Disputes regarding
elections”. Sec. 79 defines various terms and expressions
used in the Parts VI and VII. Clause (b) defines a
‘candidate’ as meaning “a person who has been or claims to
have been duly nominated as a candidate at any election, and
any such person shall be deemed to have been a candidate as
from the time when, with the election in prospect, he began
to
324
hold himself out as a prospective candidate”. Sec. 80
imposes a statutory ban on an election being called in
question except by an election petition presented in
accordance with the provisions of Part VI of the Act. Sec.
80-A vests in the High Court, the jurisdiction to try an
election petition. Sec. 81 provides for the presentation of
an election petition on one or more of the grounds specified
in Sec. 100 (1) and Sec. 101 by any candidate at such
election or any elector who was entitled to vote at the
election. Sec. 82 is entitled “Parties to the petition” and
is as follows:
“82. Parties to the petition-A petitioner shall join as
respondents to his petition-
(a) Where the petitioner, in addition to claiming
a declaration that the election of all or any
of the returned candidate is void claims a
further declaration that he himself or any
other candidate has been duly elected, all
the contesting candidates other than the
petitioner, and where no such further
declaration is claimed, all the returned
candidates; and
(b) any other candidate against whom allegations
of any corrupt practice are made in the
petition”.
Sec. 83 prescribes the contents of the petition. Sec.
84 provides that a petitioner may, in addition to claiming a
declaration that the election of the returned candidate is
void, claim a further declaration that he himself or any
other candidate has been duly elected. Sec. 86 deals with
trial of election petitions. Sub-Sec. (4) provides for an
application by a candidate who is not already a respondent
to be joined as a respondent. It is in these terms:
“(4) Any candidate not already a respondent shall,
upon application made by him to the High Court within
fourteen days from the date of commencement of the
trial and subject to any order as to security for costs
which may be made by the High Court, be entitled to be
joined as a respondent”.
Sec. 87 is concerned with the procedure before the High
Court and it is as follows:
325
“87 (1) Subject to the provisions of this Act and of any
rules made thereunder, every election petition
shall be tried by the High Court, as nearly as may
be, in accor-with the procedure applicable under
the Code of Civil Procedure, 1908 to the trial of
suits;
Provided that the High Court shall have the
discretion to refuse, for reasons to be recorded
in writing, to examine any witness or witnesses if
it is of the opinion that the evidence of such
witness or witnesses is not material for the
decision of the petition or that the party
tendering such witness or witnesses is doing so on
frivolous grounds or with a view to delay the
proceedings.
(2) The provisions of the Indian Evidence Act, 1872,
shall, subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an
election petition”.
Sec. 90 enables the returned candidate or any other party to
‘recriminate’ in cases where in the election petition a
declaration that a candidate other than the returned
candidate has been elected is claimed. Sec. 98 prescribes
the orders that may be made by the High Court at the
conclusion of the trial of an election petition. It provides
that the High Court shall make an order dismissing the
election petition or declaring the election of all or any of
the returned candidates to be void and the petitioner or any
other candidate to have been duly elected. Sec. 99, enables
the High Court to make, at the time of making order under
Sec.98, an order recording a finding whether any corrupt
practice has or has not been proved to have been committed
at the election, and the nature of corrupt practice; and the
names of all persons, if any, who have been proved at the
trial to have been guilty of corrupt practice and the nature
of that practice. The proviso to Sec. 99 (1), however,
prescribes that no person who is not a party to the petition
shall be named in the order unless he had been given notice
to appear before the High Court to show cause why he should
not be so named and he had also been given an opportunity to
cross examine any witness who had already been examined by
the High Court and had given evidence against him and an
opportunity of calling evidence in his
326
defence and of being heard. Sec. 100 enumerates the grounds
on which an election may be declared void. The High Court,
it is said, among other grounds, shall declare the election
of a returned candidate void in cases where corrupt
practices are proved, where such corrupt practice has been
committed by a returned candidate or his election agent or
by any other person with the consent of the returned
candidate or his election agent. Where the corrupt practice
has been committed in the interests of the returned
candidate by an agent other than his election agent, the
result of the election in so far as it concerns the returned
candidate must also be shown to have been materially
affected. Sec. 101 prescribes the grounds for which a
candidate, other than the returned candidate may be declared
to have been elected. Sec. 110 provides for the procedure
when an application for withdrawal of an election petition
is made to the Court. Sec. 110 (3) (c) says that a person
who might himself have been a petitioner may apply to the
Court to be substituted as a petitioner in place of the
party withdrawing. Sec. 112 (3) provides for the continuance
of the election petition on the death of the sole petitioner
in an election petition or of the survivor of several
petitioners, by any person who might himself have been a
petitioner and who applies for substitution within the
stipulated period.
The nature of the right to elect, the right to be
elected and the right to dispute an election and the scheme
of the Constitutional and statutory provisions in relation
to these rights have been explained by the Court in N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency &
Ors.,(1) and Jagan Nath v. Jaswant Singh.(2) We proceed to
state what we have gleaned from what has been said, so much
as necessary for this case.
A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a fundamental
right nor a Common Law Right. It is pure and simple, a
statutory right. So is the right to be elected. So is the
right to dispute an election. Outside of statute, there is
no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and
therefore, subject to statutory limitation. An Election
petition is not an action at Common Law, nor in equity. It
is a statutory proceeding to which neither the Common Law
nor the principles of Equity apply but
327
only those rules which the statute makes and applies. It is
a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statutory
creating it. Concepts familiar to Common Law and Equity must
remain strangers to Election Law unless statutorily
embodied. A Court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election
disputes, is what the statute lays down. In the trial of
election disputes, Court is put in a straight jacket. Thus
the entire election process commencing from the issuance of
the notification calling upon a constitutuency to elect a
member or members right up to the final resolution of the
dispute, if any, concerning the election is regulated by the
Representation of the People Act, 1951, different stages of
the process being dealt with by different provisions of the
Act. There can be no election to Parliament or the State
Legislature except as provided by the Representation of the
People Act 1951 and again, no such election may be
questioned except in the manner provided by the
Representation of the People Act. So the Representation of
the People Act has been held to be a complete and self
contained code within which must be found any rights claimed
in relation to an election or an election dispute. We are
concerned with an election dispute. The question is who are
parties to an election dispute and who may be impleaded as
parties to an election petition. We have already referred to
the Scheme of the Act. We have noticed the necessity to rid
ourselves of notions based on Common Law or Equity. We see
that we must seek an answer to the question within the four
corners of the statute. What does the Act say?
Sec. 81 prescribes who may present an election
petition. It may be any candidate at such election; it may
be any elector of the constituency; it may be none else.
Sec. 82 is headed “Parties to the petition” and clause (a)
provides that the petitioner shall join as respondents to
the petition the returned candidates if the relief claimed
is confined to a declaration that the election of all or any
of the returned candidates is void and all the contesting
candidates if a further declaration is sought that he
himself or any other candidate has been duly elected. Clause
(b) of Sec. 82 requires the petitioner to join as respondent
any other candidate against whom allegations of any corrupt
practice are made in the petition. Sec. 86 (4) enables any
candidate not already a respondent to be joined as a
respondent. There is no other provision dealing with
328
question as to who may be joined as respondents. It is
significant that while clause (b) of Sec. 82 obliges the
petitioner to join as a respondent any candidate against
whom allegations of any corrupt practice are made in the
petition, it does not oblige the petitioner to join as a
respondent any other person against whom allegations of any
corrupt practice are made. It is equally significant that
while any candidate not already a respondent may seek and,
if he so seeks, is entitled to be joined as a respondent
under Sec. 86 (4), any other person cannot, under that
provision seek to be joined as respondent, even if
allegations of any corrupt practice are made against him. It
is clear that the contest of the election petition is
designed to be confined to the candidates at the election.
All others are excluded. The ring is closed to all except
the petitioner and the candidates at the election. If such
is the design of the statute, how can the notion of ‘proper
parties’ enter the picture at all ? We think that the
concept of ‘proper parties’ is and must remain alien to an
election dispute under the Representation of the People Act,
1951. Only those may be joined as respondents to an election
petition who are mentioned in Sec. 82 and Sec. 86 (4) and no
others. However desirable and expedient it may appear to be,
none else shall be joined as respondents.
It is said, the Civil Procedure Code applies to the
trial of election petitions and so proper parties whose
presence may be necessary in order to enable the Court
‘effectually and completely to adjudicate upon and settle
all questions involved’ may be joined as respondents to the
petitions. The questions is not whether the Civil Procedure
Code applies because it undoubtedly does, but only ‘as far
as may be’ and subject to the provisions of the
Representation of the People Act, 1951 and the rules made
thereunder. Sec. 87 (1) expressly says so. The question is
whether the provisions of the Civil Procedure Code can be
invoked to permit that which the Representation of the
People Act does not. Quite obviously the provisions of the
Code cannot be so invoked. In Mohan Raj v. Surendra Kumar
Taparia & Ors.,(1) this Court held that the undoubted power
of the Court (i.e. the Election Court) to permit an
amendment of the petition cannot be used to strike out
allegations against a candidate not joined as a respondent
so as to save the election petition from dismissal for non-
joinder of necessary
329
parties. It was said, “The Court can order an amendment and
even strike out a party who is not necessary. But where the
Act makes a person a necessary party and provides that the
petition shall be dismissed if such a party is not joined,
the power of amendment or to strike out parties cannot be
used at all. The Civil Procedure Code applies subject to the
provisions of the Representation of the People Act and any
rules made thereunder. When the Act enjoins the penalty of
dismissal of the petition for non-joinder of a party the
provisions of the Civil Procedure Code cannot be used as a
curative means to save the petition.” Again, in K.
Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi and
Ors.,(1) it was observed:
“With regard to the addition of parties which is
possible in the case of a suit under the provisions of
O.l r. 10 subject to the added party right to contend
that the suit as against him was barred by limitation
when he was added, no addition of parties is possible
in the case of an election petition except under the
provisions of Sub-sec. (4) of Section 86”.
The matter may be looked at from another angle. The
Parliament has expressly provided that an opportunity should
be given to a person who is not a candidate to show cause
against being ‘named’ as one guilty of a corrupt practice.
Parliament however, has not thought fit to expressly provide
for his being joined as a party to the election petition
either by the election-petitioner or at the instance of the
very person against whom the allegations of a corrupt
practice are made. The right given to the latter is limited
to show cause against ‘named’ and that right opens up for
exercise when, at the end of the trial of the election
petition notice is given to him to show cause why he should
not be ‘named’. The right does not extend to participation
at all stages and in all matters, a right which he would
have if he is joined as a party at the commencement.
Conversely the election petitioner cannot by joining as a
respondent a person who is not a candidate at the election
subject him to a prolonged trial of an election petition
with all its intricacies and ramifications. One may well
imagine how mischievous minded persons may harass public
personages like the Prime Minister of
330
the country, the Chief Minister of a State or a political
leader of a national dimension by impleading him as a party
to election petitions, all the country over. All that would
be necessary is a seemingly plausible allegation, casually
or spitefully made, with but a facade of truth. Everyone is
familiar with such allegations. To permit such a public
personage to be impleaded as a party to an election petition
on the basis of a mere allegation, without even prime facie
proof, an allegation which may ultimately be found to be
unfounded, can cause needless vexation to such personage and
prevent him from the effective discharge of his public
duties. It would be against the public interest to do so.
The ultimate award of costs would be no panacea in such
cases, since the public mischief cannot be repaired. That is
why public Policy and legislative wisdom both seem to point
to an interpretation of the provisions of the Representation
of the People Act which does not permit the joining, as
parties, of persons other than those mentioned in Sections
82 and 86 (4). It is not as if a person guilty of a corrupt
practice can get away with it. Where at the concluding stage
of the trial of an election petition, after evidence has
been given, the Court finds that there is sufficient
material to hold a person guilty of a corrupt practice, the
Court may then issue a notice to him to show cause under
Sec. 99 and proceed with further action. In our view the
legislative provision contained in Sec. 99 which enables the
Court, towards the end of the trial of an election petition,
to issue a notice to a person not a party to the proceeding
to show cause why he should not be ‘named’ is sufficient
clarification of the legislative intent that such person may
not be permitted to be joined as a party to the election
petition.
There is yet another view-point. When in an election
petition in addition to the declaration that the election of
the returned candate is void a further declaration is sought
that any candidate other than the returned candidate has
been duly elected, sec. 97 enables the returned candidate or
any other party to ‘recriminate’ i.e. to give evidence to
prove that the election of such candidate would have been
void if he had been a returned candidate and a petition had
been presented to question his election. If a person who is
not a candidate but against whom allegations of any corrupt
practice are made is joined as a party to the petition then,
by virtue of his position as a party, he would also be
entitled to ‘recriminate’ under sec. 97. Surely such a
construction of the statute would throw the doors of an
election petition wide open and convert the petition into
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a ‘free for all’ fight. A necessary consequence would be an
unending, disorderly election dispute with no hope of
achieving the goal contemplated by Sec. 86(6) of the Act
that the trial of the election petition should be concluded
in six months. It is just as well to remember that ‘corrupt
practice’ as at present defined by Sec. 123 of the Act is
not confined to the giving of a bribe but extends to the
taking of a bribe too and, therefore, the number of persons
who may be alleged to be guilty of a corrupt practice may
indeed be very large, with the consequence that all of them
may possibly be joined as respondents.
In view of the foregoing discussion we are of the
opinion that no one may be joined as a party to an election
petition otherwise than as provided by Sections 82 and 86(4)
of the Act. It follows that a person who is not a candidate
may not be joined as a respondent to the election petition.
The appeal is therefore, allowed with costs and the names of
the appellants and the seventh respondent in the appeal are
directed to be struck out from the array of parties in the
election petition. We may mention that in arriving at our
conclusion we have also considered the following decisions
cited before us: S.B. Adityen & Anr. v. S. Kandaswami &
Ors.,(1) Dwijendra Lal Sen Gupta v. Herekrishna Koner,(2)
H.R. Gokhale v. Bharucha Noshir C. & Ors.,(3) and S. Iqbal
Singh v. S. Gurdas Singh Badal & Ors.(4)
N.V.K, Appeal allowed
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