PETITIONER: RAJ KRUSHNA BOSE Vs. RESPONDENT: BINOD KANUNGO AND OTHERS. DATE OF JUDGMENT: 04/02/1954 BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM CITATION: 1954 AIR 202 1954 SCR 913 CITATOR INFO : F 1954 SC 587 (12) F 1955 SC 425 (12) R 1976 SC1207 (565) ACT: Constitution of India, arts. 136 and 226-Representation of the People Act, 1951 (Act XLIII of 1951), ss. 33(2), 99, 105, 123 (8)-Order of the tribunal under s. 105 declared as final and conclusive-Whether affects discretionary powers of Supreme Court and High Courts under arts. 136 and 226- Elected candidate nominated or seconded by Government servant-Legal effect thereof Orders of tribunal, contents of. HEADNOTE: (1) The unfettered discretionary powers conferred on the Supreme Court and the High Courts by arts. 136 and 226 of the Constitution respectively cannot be taken away or whittled down by the legislature and therefore s. 105 of the Representation of the People Act, 1951, which provides that every order of the tribunal under the Act shall be final and conclusive did not affect such powers. (2) In view of the provisions of s. 16 of the Representation of the People Act, 1950, and the provisions of ss. 33 (2) and 123 (8) of the Representation of the People Act, 1951, an election to a State Legislative Assembly is not invalidated when the elected member is either nominated or seconded or both by a Government servant or servants. (3) The Supreme Court recorded its disapproval of the way in which the Election Tribunal shirked its duty and tried to take a short cut in deciding only two of the twelve issues framed and thus acted against the provisions of s. 99 of the Act. JUDGMENT:
CIVIL APPELLANTE JURISDICTION: Civil Appeal No. 239 of 1953.
Appeal by special leave from the Order and Judgment dated
the 5th September, 1953, of the Election Tribunal, Cuttack,
in Election Case No. 5 of 1952.
S. B. Jathar for the appellant.
S. P. Sinha (R. Patnaik, with him) for the respondent.
1954. February 4. The Judgment of Mahajan C.J. Mukherjea,
Das and Ghulam Hasan JJ. was delivered’ by Das J. Vivian
Bose J. delivered a separate judgment.
DAS J.-The question here is whether an election to
a State Legislative Assembly is invalidated when the
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member’s nomination was either proposed or seconded, or
both, by a Government servant or servants.
The appellant was a minister in the State of Orissa. He was
nominated as a candidate for the Orissa Legislative Assembly
and was later declared to have been elected. One of his
rivals was the 1st respondent who filed an election petition
challenging the election on a number of grounds, among them,
the following.
The appellant had filed about two dozen nomination papers.
In five of them the proposer was a Government servant and in
four the seconder. The 1st respondent stated that this was
the first step in a scheme to get the assistance of
Government officers in furtherance of the appellant’s
election and to “use and utilse” them “for the purposes of
the election.” There were also other allegations Which we
need not consider here.
The appellant made counter allegations against the 1st
respondent, whom he had defeated, but they do not concern us
either.
The Election Tribunal framed twelve issues and examined 101
witnesses, but when it came to make its order it proceeded
to decide only two issues instead of deciding the whole
case. It held that as the proposers and seconders referred
to above were admittedly Government servants that
constituted a major corrupt practice and so invalidated the
election under section 123 (8) of the Representation of the
People Act, 1951 (No. XLIII of 1951). The other of the two
decided issues does not concern this appeal.
The appellant thereupon petitioned the High Court for a writ
of certiorari Under article 226 of the Constitution. The
High Court refused to interfere. The learned Judges held
that there was no want of jurisdiction in the tribunal and
that the tribunal’s view of the law was a possible and
reasonable one , accordingly, as the High Court was not a
court of appeal from the tribunal, they were not called upon
to decide the question as a court of appeal.
The appellant was granted special leave to appeal by this
court against the order Of the Election Tribunal.
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A question of ‘great public importance affecting Government
servants is involved and we deem it right to examine the
question under our special jurisdiction under article 136.
The only sections we are called upon to consider are
sections 33 (2) and 123 (8). The former provides that-
“Any person whose name is registered in the electoral roll
of the constituency and who is not subject to any
disqualification mentioned in section 16 of the
Representation of the People Act, 1950 (XLIII of 1950) may
subscribe as proposer or seconder as man nomination papers.
as there are vacancies to be filled…
According to the latter-
“The obtaining or procuring or abetting…… by a candidate
or his agent or, by any other person with the ‘connivance of
a candidate or his agent, any assistance for the furtherance
of the prospects of the candidate’s election from any person
serving under the Government of India or the Government of
any State other than the giving of vote by such person”
shall be deemed to be a major corrupt practice for the
purposes of the Act. A corrupt practice of this kind
entails disqualification for membership (section 140).
Section 33 (2) is general and confers the privilege of
proposing or seconding a candidate for election on every
person who is registered in the electoral roll provided be
is not disqualified under section 16 of the Act of 1950.
That section excludes three classes of persons but not
Government servants, unless of course they happen to fall
within those classes. Therefore, so far as section 33 (2)
is concerned, a Government servant is entitled to nominate
or second a candidate for election unless he happens to fall
in one of the three excluded categories. The question is
whether section 123 (8) takes away from Government servants
that which section 33 (2) gives to them. We do not think it
does.
Viewing the question as a plain matter of construetion, we
find that when section 33(2) was framed those
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who passed it had in mind the desirability of excluding
certain classes of persons from its scope and they chose to
limit those classes to three. Therefore, in the absence of
express provision to the contrary elsewhere, or unless it
follows by necessary implication, the section must be
construed to mean that those not. expressly excluded are
intended to be included. As Government servants are not in
the excluded categories it follows that so far as this
section is concerned they are not disqualified from
proposing and seconding a candidate’s nomination.
Now, does section 123 (8) contain express provision to the
contrary or can such provision be inferred by necessary
implication? It is usual, when one section of an Act takes
away what another confers, to use a non obstante clause and
say that “notwithstanding anything contained in section so
and so, this or that will happen”, otherwise, if both
sections are clear, there is a head-on clash. It is the
duty of courts to avoid that and, whenever it is possible to
do so, to construe provisions which appear to conflict so
that they harmonise.
What exactly does section 123 (8) forbid? It is the
obtaining or procuring etc., of “any assistance………
other than the giving of vote by such person.” Therefore, it
is permissible for a candidate to canvass Government
servants for their votes and if a Government servant chooses
to reveal his hand it would be permissible for the candidate
to disclose the fact and use it in furtherance of his
election, for the law imposes no secrecy on the intentions
of those who, of their own free will, choose to say how they
intend to vote. They cannot be compelled to disclose the
fact and any improper attempt to obtain such information
would be a corrupt practice, but equally, they are not
completed to keep the fact secret if they do not wish to do
so; nor is the candidate. If therefore the law permits
this, we find it difficult to see how in the same breath it
can be said to have taken away the right expressly conferred
by section 33(2). The policy of the law is to keep
Government servants aloof from politics and also to protect
them from being imposed on, by those with
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influence or in positions of authority and power, and to
prevent the machinery of Government from being used in
furtherance of a candidate’s return. But at the same time
it is not the policy of the law to disenfranchise them or to
denude them altogether of their rights as ordinary citizens
of the land. The balance between the two has, in our
opinion, been struck in the manner indicated above.
But though it is permissible for a candidate to go that far,
he cannot go further and if the procurement of Government
servants to propose and second a nomination is part of a
plan to procure their assistance for the furtherance of the
candidate’s prospects in other ways than by vote, then
section 123(8) is attracted, for in that case, the plan, and
its fulfillment, must be viewed as a connected whole and the
acts of proposing or seconding which are innocent in
themselves cannot be separated from the rest.
Our conclusion on the preliminary issue may also be
supported on another ground. The major corrupt practice
referred to in clause (8) of section 123 consists in
obtaining or procuring or abetting or attempt to obtain or
procure by a candidate or his agent etc., any assistance for
the furtherance of the prospects of the candidate’s election
from any person serving under the Government of India or the
Government of any State other than the giving of vote by
such person. In order, therefore, to bring a case within
the mischief of that clause the assistance must be for the
furtherance of the prospects of the candidate’s election.
Section 79(b) defines a candidate as meaning
” a person who has been or claims to have been nominated as
a candidate at any election, and any such person shall be
deemed to have been a candidate as from the time when, with
the election in prospect, he began to hold himself out as a
prospective candidate.”
Unless, therefore, a case falls within the latter half of
the definition a person becomes a candidate under the first
part of the definition only when he has been duly nominated
as a candidate and the furtherance of
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the prospects of a candidate’s election must, therefore, in
such a case commence from after that stage. Although
evidence was adduced on both sides, there has been no
finding so far on questions of fact which may or may not
bring the case within the second part of the definition. In
the absence of such a finding the case must be regarded, for
the purpose of the preliminary issue, as governed by the
first part of the definition and as such the proposing and
seconding by a Government servant cannot be regarded as
“assistance for the furtherance of the prospects of the
candidate’s election.” In this view of the matter also, the
judgment of the Election Tribunal cannot be sustained.
We set aside the order of the tribunal and remit the case to
the Election Commission with directions to it to
reconstitute the tribunal which tried this case and to
direct the tribunal to give its findings on all the issues
raised and to make a fresh order.
Our power to make such an order was not questioned but it
was said that when the legislature states that the orders of
a tribunal under an Act like the one here shall be
conclusive and final (section 105), then we should not
interfere. It is sufficient to say that the powers
conferred on us by article 136 of the Constitution and on
the High Courts under article 226 cannot be taken away or
whittled down by the legislature. So long as these powers
remain, our discretion and that of the High Courts is
unfettered.
We wish to record our disapproval of the way in which this
tribunal shirked its work and tried to take a short cut. It
is essential that these tribunals should do their work in
full. They are ad hoc bodies to which remands cannot easily
be made as in ordinary courts of law. Their duty under
section 99 is,
” where any charge is made in the petition of any corrupt or
illegal practice having been committed at the election”
to record
” a finding whether any corrupt or illegal practice has or
has not been proved to have been committed…and the,nature
of that corrupt or illegal practice.”
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Also,
” to give the names of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt or
illegal practice and the nature of that practice.”
Their duty does not end by declaring an election to be void
or not because section 99 provides that in addition to that
” at the time of making an order under section 98the
tribunal shall also make an order etc……..”
A number of allegations were made in the petition about
corruption and illegal practices, undue influence and
bribery. It was the duty of the tribunal not only to
enquire into those allegations, as it did, but also to
complete the enquiry by recording findings about those
allegations and either condemn or clear the candidate of the
charges made.
We make no order about costs.
Bose J.-I agree on all but one point. I have some doubt
about the reason given by my learned brother which is based
on the definition’ of “candidate” in the Act. I prefer not
to express any opinion that one point.
Case remanded.
Agent for the appellant: Ratnaparkhi Anant Govind.
Agent for respondent No. 1 A. D. Mathur.