{"id":26948,"date":"1982-02-26T00:00:00","date_gmt":"1982-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jyoti-basu-others-vs-debi-ghosal-others-on-26-february-1982"},"modified":"2016-08-15T04:58:01","modified_gmt":"2016-08-14T23:28:01","slug":"jyoti-basu-others-vs-debi-ghosal-others-on-26-february-1982","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jyoti-basu-others-vs-debi-ghosal-others-on-26-february-1982","title":{"rendered":"Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982<\/div>\n
Equivalent citations: 1982 AIR 983, \t\t 1982 SCR (3) 318<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nJYOTI BASU & OTHERS.\n\n\tVs.\n\nRESPONDENT:\nDEBI GHOSAL & OTHERS.\n\nDATE OF JUDGMENT26\/02\/1982\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nPATHAK, R.S.\n\nCITATION:\n 1982 AIR  983\t\t  1982 SCR  (3) 318\n 1982 SCC  (1) 691\t  1982 SCALE  (1)115\n CITATOR INFO :\n F\t    1983 SC1311\t (7,16)\n R\t    1984 SC 135\t (8)\n RF\t    1985 SC 150\t (26)\n E\t    1985 SC1133\t (20)\n F\t    1987 SC1577\t (14)\n\n\nACT:\n     Representation of\tthe People  Act 1951,  Ss. 82 and 86\n(4) Election  Petition-Parties to-Who  are-Corrupt  practice\nalleged against\t person who  is not  a candidate-Such person\nwhether can be impleaded as respondent.\n     Election Law-Right\t to elect-Neither  fundamental right\nnor Common  Law right-Statutory\t right subject\tto statutory\nlimitations.\n     Code of  Civil Procedure  1908 Or.1  r.  10-Concept  of\n'proper parties'-Applicability of to election petitions.\n\n\n\nHEADNOTE:\n     The Representation\t of the\t People Act 1951, by Section\n81 prescribes  who may\tpresent an election petition. It may\nbe by  any candidate at such election, by any elector of the\nconstituency, and  by  none  else.  Section  82\t clause\t (a)\nprovides that  the petitioner  in an election petition shall\njoin as\t respondents to the petition the returned candidates\nif the\trelief claimed is confined to a declaration that the\nelection of  all or  any of  the returned candidates is void\nand all\t the contesting\t candidates if a further declaration\nis sought  that he  himself or\tany other candidate has been\nduly  elected.\tClause\t(b)  of\t the  section  requires\t the\npetitioner  to\tjoin  as  respondents  any  other  candidate\nagainst whom allegations of any corrupt practice are made in\nthe petition.  Section 86  (4)\tenables\t any  candidate\t not\nalready a respondent to be joined as respondent.\n     The first appellant in the appeal is the Chief Minister\nand appellants\t2 and  3  State\t Ministers.  They  had\tbeen\nimpleaded by  the first respondent as parties to an election\npetition filed\tby him\tin the\tHigh Court  questioning\t the\nelection of  the second\t respondent  to\t the  House  of\t the\nPeople. It  was averred\t in the\t election petition  that the\nChief Ministers\t and the  State ministers who were impleaded\nas  parties  to\t the  election\tpetition  had  colluded\t and\nconspired with\tthe returned  candidate\t to  commit  various\nalleged corrupt\t practices. The Chief Minister and the other\nMinisters denied  the  commission  of  the  various  alleged\ncorrupt practices  and claimed\tthat the election petitioner\nwas not\t entitled to implead them as parties to the election\npetition, as  they were not candidates at the election. They\nfiled an  application before  the High\tCourt to  strike out\ntheir names  from the  array  of  parties  in  the  election\npetition. It was dismissed on the ground that the appellants\nwere proper  parties to\t the election petition and therefore\ntheir names could not be struck out of the array of parties,\n319\n     In the appeal to this Court, it was contended on behalf\nof the appellants that the concept of a proper party was not\nrelevant in  election law  and that only those persons could\nbe impleaded as parties who were expressly directed to be so\nimpleaded by  the Representation of the People Act 1951, and\nthat they  were entitled  to be struck out from the array of\nparties. On  behalf of the first respondent it was submitted\nthat the  appellants were  proper parties  to  the  election\npetition and  their presence  was necessary  for a complete,\nfinal and  expeditious decision on the questions involved in\nthe action.\n     Allowing the Appeal,\n^\n     HELD: 1. No one can be joined as a party to an election\npetition otherwise  than as provide by Section 82 and 86 (4)\nof the\tRepresentation of  the people Act 1951. A person who\nis not\ta candidate may not be joined as a respondent to the\nelection petition [331 C-D]\n     In the instant case the names of the appellants and the\n7th respondent\tin the\tappeal are directed to be struck out\nfrom the array of parties in the election petition. [331 D]\n     2. A  right to  elect,  fundamental  though  it  is  to\ndemocracy, is, anomalously neither a fundamental right nor a\nCommon Law  Right. It  is a statutory right. So is the right\nto be elected, and the right to dispute an election. Outside\nof statute,  there is  no right\t to elect,  no right  to  be\nelected, and  no right\tto dispute  an\telection.  Statutory\ncreations they\tare, and  therefore,  subject  to  statutory\nlimitation. An\tElection petition is not an action at Common\nLaw, nor  in equity.  It is  a statutory proceeding to which\nneither the  Common Law\t nor the  principles of Equity apply\nbut only those rules which the statute makes and applies. It\nis a  special jurisdiction,  and a  special jurisdiction has\nalways to  be  exercised  in  accordance  with\tthe  statute\ncreating it. Concepts familiar to Common Law and Equity must\nremain\tstrangers   to\tElection   Law\tunless\t statutorily\nembodied. A  Court  has\t no  right  to\tresort\tto  them  on\nconsiderations of  alleged policy  because  policy  in\tsuch\nmatters,  as  those,  relating\tto  the\t trial\tof  election\ndisputes, is  what the\tstatute lays  down. In\tthe trial of\nelection disputes,  Court is  put in a straight jacket. [326\nF-H; 327 A-B]\n     3. The  contest of the election petition is designed to\nbe confined  to the  the candidates  at\t the  election.\t All\nothers are  excluded. The  ring is  closed to all except the\npetitioner and\tthe candidates\tat the election. Such is the\ndesign of the statute. [328 C]\n     4.\t While\t clause\t (b)   of  section  82\tobliges\t the\npetitioner in  an election  petition to join as a respondent\nany  candidate\tagainst\t whom  allegations  of\tany  corrupt\npractice are  made in  the petition,  it does not oblige the\npetitioner to  join as a respondent any other person against\nwhom allegations of any corrupt practice are made. While any\ncandidate not  already a  respondent may  seek and, if he so\nseeks, is  entitled to\tbe  joined  as\ta  respondent  under\nsection\t 86   (4),  any\t other\tperson\tcannot,\t under\tthat\nprovision seek\tto  be\tjoined\tas  a  respondent,  even  if\nallegations of\tany corrupt  practice are  made against him.\n[328 A-C]\n320\n     5. The  concept of\t `proper parties' is and must remain\nalien to an election dispute under the Representation of the\nPeople Act, 1951. Only those may be joined as respondents to\nan election  petition who  are mentioned  in section  82 and\nsection\t 86   (4)  and\tno  others.  However  desirable\t and\nexpedient it  may appear  to be none else shall be joined as\nrespondents. [328 D]\n     6. The provisions of the Civil Procedure Code cannot be\ninvoked to  permit that\t which\tthe  Representation  of\t the\nPeople Act  1951 does  not permit.  The Civil Procedure Code\napplies subject\t to the\t provisions of the Representation of\nthe People Act 1951 and any rule made thereunder. Section 87\n(1) expressly  says so . When the Act enjoins the penalty of\ndismissal of  the petition  for non-joinder  of a  party the\nprovisions of  the Civil  Procedure Code cannot be used as a\ncurative means to save the petition. [328 F-H; 329 A-C]\n     Mohan Raj v. Surendra Kumar Taparia & Ors.<\/a> [1961] 1 SCR\nand R.\tVenkateswara Rao & Anr. v. Bekkam  Narasimha Reddi &\nOrs.<\/a> [1969]1 SCR 679, referred to.\n     7.\t Parliament   has   expressly\tprovided   that\t  an\nopportunity should  be given  to  a  person  who  is  not  a\ncandidate to  show cause against being 'named' as one guilty\nof a  corrupt practice. Parliament, however, has not thought\nfit to\texpressly provide for his being joined as a party to\nthe election  petition either  by the election-petitioner or\nat  the\t instance  of  the  very  person  against  whom\t the\nallegations of\ta corrupt practice are made. The right given\nto the latter is limited to show cause against being 'named'\nand that right opens up for exercise when, at the end of the\nelection petition  notice is  given to him to show cause why\nhe should  not be  'named'. The\t right does  not  extend  to\nparticipation at  all stages  and in  all matters,  a  right\nwhich he  would have  if he  is joined\tas a  'party' at the\ncommencement. [329 E-G]\n     8 (i)  The election  petitioner cannot  by joining as a\nrespondent a  person who  is not a candidate at the election\nsubject him  to a  prolonged trial  of an  election petition\nwith all its intricacies and ramifications. [329-G]\n     (ii)  Mischievous\tminded\tpersons\t may  harass  public\npersonages like the Prime Minister of the country, the Chief\nMinister of  a State  or a  political leader  of a  national\ndimension  by\timpleading  him\t  as  a\t party\tto  election\npetitions. All\tthat  would  be\t necessary  is\ta  seemingly\nplausible allegation,  casually or spitefully made, with but\na facade  of truth.  To permit such a public personage to be\nimpleaded as a party to an election petition on the basis of\na  mere\t allegation,  without  even  prima  facie  proof  an\nallegation which  may ultimately  be found  to be unfounded,\ncan cause  needless vexation  to sush  personage and prevent\nhim from  the effective\t discharge of  his public duties. It\nwould be  against the public interest to do so. The ultimate\naward of  costs would be no panacea in such cases, since the\npublic\tmischief  cannot  be  repaired.\t Public\t Policy\t and\nlegislative wisdom  both point to an interpretation that the\nprovisions of the Representation of the People Act 1951 does\nnot permit  the joining,  as parties  of persons  other than\nthose mentioned in sections 82 and 86 (4). [329 H; 330 A-D]\n321\n     9 (i)  The legislative  provisions contained in section\n99 enables  the Court,\ttowards the  end of  the trial of an\nelection petition, to issue a notice to a person not a party\nto the\tproceedings to\tshow cause  why\t he  should  not  be\n'named' is  a sufficient  clarification of  the\t legislative\nintent that such person may not be permitted to be joined as\na party to the election petition. [330 E-F]\n     9 (ii)  If a  person who is not a candidate but against\nwhom allegations  of any corrupt practice are made is joined\nas a  party he would also be entitled to 'recriminate' under\nsection 97.  Such a  construction of the statute would throw\nthe doors  of an election wide open and convert the petition\ninto a 'free for all' fight. The necessary consequence would\nbe an  unending, disorderly election dispute with no hope of\nachieving the  goal contemplated  by sec.  86 (6) of the Act\nthat the  trial of the election petition should be concluded\nin six months.\n\t\t\t\t\t    [330 H; 331 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1553 of
\n1980.\n<\/p>\n
     Appeal by\tspecial leave  from the\t judgment and  order
\ndated the  3rd July,  1980 of  the Calcutta  High  Court  in
\nElection Petition Case No. 1 of 1980.\n<\/p>\n
     Somnath Chatterjee,  Rathin Das  and Aninda  Mitter for
\nthe Appellants.\n<\/p>\n
     Sidhartha Shankar Ray, R.K. Lala and T.V.S.N. Chari for
\nRespondent No. 1.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     CHINNAPPA REDDY, J. The first appellant, Jyoti Basu, is
\nthe Chief  Minister and\t appellants two\t and three  Budhadeb
\nBhattacharya and  Hashim Abdul\tHalim, are  two Ministers of
\nthe Government\tof West\t Bengal. They have been impleaded by
\nthe first  respondent as  parties to  an  election  petition
\nfiled  by   him\t questioning  the  election  of\t the  second
\nrespondent  to\t the  House  of\t the  People  from  the\t 19-
\nBarrackpore  Parliamentary   Constituency  in  the  mid-term
\nParliamentary election\theld in\t January, 1980.\t There\twere
\nfive candidates\t who sought  election from the Constituency.
\nMod. Ismail,  the first\t respondent, whose  candidature\t was
\nsponsored by  the Communist  Party of  India (Marxist)\twas,
\nelected securing  2,66,698 votes  as against  Debi Ghosal, a
\ncandidate sponsored  by the  Indian National Congress led by
\nSmt. Indira  Gandhi who\t secured 1,62,770  votes. The  other
\ncandidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan
\nMishra secured\t25,734, 12,271 and 2,763 votes respectively.
\nThe first  respondent filed an election petition in the High
\nCourt of
\n322<\/span>
\nCalcutta questioning  the election  of the second respondent
\nMohd. Ismail  on various  grounds. He impleaded the returned
\ncandidate as  the first\t respondent,  and  the\tother  three
\nunsuccessful candidates\t respondents  2,  3  and  4  to\t the
\nelection petition.  Besides the\t candidates at the election,
\nhe impleaded  several others  as respondents.  The  District
\nMagistrate and\tReturning Officer was impleaded as the fifth
\nrespondent,  Buddhadeb\t Bhattacharya,\tthe   Minister\t for
\nInformation and\t Publicity, Government of West Bengal as the
\nsixth respondent.  Jyoti Basu,\tthe Chief  Minister  as\t the
\nseventh respondent,  Md. Amin, the Minister of the Transport
\nBranch of  the Home  Department as  the\t eighth\t respondent,
\nHashim Abdul  Halim, the Minister of the Legislative and the
\nJudicial  Department   as  the\t ninth\trespondent  and\t the
\nElectoral Registration\tOfficer as  the tenth respondent. It
\nwas averred in the election petition that the Chief Minister
\nand the other Ministers of the Government of West Bengal who
\nwere impleaded\tas parties  to\tthe  election  petition\t had
\ncolluded and conspired with the returned candidate to commit
\nvarious alleged\t corrupt practices.  Apart from\t denying the
\ncommission of  the various  alleged corrupt  practices,\t the
\nChief Minister\tand the\t other Ministers  claimed  in  their
\nwritten statements  that the  election\tpetitioner  was\t not
\nentitled  to   implead\tthem  as  parties  to  the  election
\npetition. They\tclaimed that  as they were not candidates at
\nthe election  they could  not be impleaded as parties to the
\nelection petition.  The Chief  Minister and two of the other
\nMinisters, Hashim Abdul Halim and and Buddhadeb Bhattacharya
\nfiled an  application before  the High\tCourt of Calcutta to
\nstrike out  their names\t from the  array of  parties in\t the
\nelection petition.  The application  was  dismissed  by\t the
\nCalcutta High  Court  on  the  ground  that  the  applicants
\n(appellants) were  proper parties  to the  election petition
\nand, therefore,\t their names should not be struck out of the
\narray of  parties. The appellants have preferred this appeal
\nafter obtaining\t special leave\tof this Court under Art. 136
\nof the Constitution.\n<\/p>\n
     Shri  Somnath   Chatterjee,  learned  counsel  for\t the
\nappellant submitted  that the  concept of a proper party was
\nnot relevant  in election  law and  that only  those persons
\ncould be impleaded as parties who were expressly directed to
\nbe so  impleaded by  the Representation\t of the\t People Act,
\n1951. He claimed that in any case such persons were entitled
\nto be  struck out  from the  array of  parties. On the other
\nhand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned
\ncounsel\t for   the  first   respondent\tsubmitted  that\t the
\nappellants were\t proper parties to the election petition and
\ntheir presence was
\n323<\/span>
\nnecessary for  a complete, final and expeditious decision on
\nthe questions involved in the action.\n<\/p>\n
     To properly  appreciate the  rival\t contentions  it  is
\nnecessary  to  refer  to  the  relevant\t provisions  of\t the
\nConstitution of\t India and  the two  Representation  of\t the
\nPeople Acts of 1950 and 1951.\n<\/p>\n
     First the\tConstitution. Part  XV deals with elections.
\nArt.   324    vests   in   the\t Election   Commission\t the
\nsuperintendence, direction and control of the preparation of
\nthe Electoral  rolls and  the conduct  of all  elections  to
\nParliament and\tto the\tLegislatures of the States. Art. 325
\nprovides that  there shall be one general electoral roll for
\nevery territorial  constituency and  that no person shall be
\nineligible for\tinclusion in  such rolls  on grounds only of
\nreligion, caste,  sex or any of them. Art. 326 provides that
\nelection to  the House\tof the People and to the Legislative
\nAssemblies  of\tStates\tshall  be  on  the  basis  of  adult
\nfranchise. Art.\t 327 enables  Parliament to  make laws\twith
\nrespect to all matters relating to elections to either House
\nof Parliament  or to  the Houses  of the  Legislature  of  a
\nState. Art.  328 enables  the Legislature  of  a  State,  if
\nParliament has\tnot made such legislation, to make laws with
\nrespect to  all matters\t relating to elections to the Houses
\nof the\tLegislature of the State. Art. 329 bars interference
\nby  Courts   in\t electoral   matters  and   clause  (b),  in
\nparticular, provides  that no  election to  either House  of
\nParliament  or\t to  the   House  or  either  House  of\t the
\nLegislature of a State shall be called in question except by
\nan election petition presented to such authority and in such
\nmanner as  may be  provided for\t by or under any law made by
\nthe appropriate legislature.\n<\/p>\n
     Next, the\tRepresentation of People Act, 1950. This Act
\nprovides for  the delimitation of the Constituencies for the
\npurpose of  elections to  the House  of the  people and\t the
\nlegislatures of\t States, the qualification of voters at such
\nelections, the\tpreparation of\telectoral  rolls  and  other
\nmatters connected therewith.\n<\/p>\n
     Last, the\tRepresentation of  the People  Act of  1951,
\nPart  VI   of  the   Act  deals\t  with\t“Disputes  regarding
\nelections”. Sec.  79 defines  various terms  and expressions
\nused  in  the  Parts  VI  and  VII.  Clause  (b)  defines  a
\n‘candidate’ as\tmeaning “a  person who has been or claims to
\nhave been duly nominated as a candidate at any election, and
\nany such  person shall be deemed to have been a candidate as
\nfrom the  time when, with the election in prospect, he began
\nto
\n324<\/span>
\nhold himself  out  as  a  prospective  candidate”.  Sec.  80
\nimposes a  statutory ban  on an\t election  being  called  in
\nquestion  except   by  an  election  petition  presented  in
\naccordance with\t the provisions\t of Part VI of the Act. Sec.
\n80-A vests  in the  High Court,\t the jurisdiction  to try an
\nelection petition.  Sec. 81 provides for the presentation of
\nan election petition on one or more of the grounds specified
\nin Sec.\t 100 (1)  and Sec.  101 by  any\t candidate  at\tsuch
\nelection or  any elector  who was  entitled to\tvote at\t the
\nelection. Sec.\t82 is entitled “Parties to the petition” and
\nis as follows:\n<\/p>\n
     “82. Parties to the petition-A petitioner shall join as
\n\t  respondents to his petition-\n<\/p><\/blockquote>\n
\t  (a)  Where the petitioner, in addition to claiming
\n\t       a declaration that the election of all or any
\n\t       of the  returned candidate  is void  claims a
\n\t       further declaration  that he  himself or\t any
\n\t       other candidate\thas been  duly elected,\t all
\n\t       the  contesting\tcandidates  other  than\t the
\n\t       petitioner,  and\t  where\t no   such   further
\n\t       declaration  is\tclaimed,  all  the  returned
\n\t       candidates; and\n<\/p><\/blockquote>\n
\t  (b)\tany other candidate against whom allegations
\n\t       of any  corrupt\tpractice  are  made  in\t the
\n\t       petition”.\n<\/p><\/blockquote>\n
     Sec. 83  prescribes the  contents of the petition. Sec.\n<\/p><\/blockquote>\n
84 provides that a petitioner may, in addition to claiming a
\ndeclaration that  the election\tof the returned candidate is
\nvoid, claim  a further\tdeclaration that  he himself  or any
\nother candidate\t has been  duly elected.  Sec. 86 deals with
\ntrial of  election petitions.  Sub-Sec. (4)  provides for an
\napplication by\ta candidate  who is not already a respondent
\nto be joined as a respondent. It is in these terms:\n<\/p>\n
\t  “(4) Any candidate not already a respondent shall,
\n     upon application  made by\thim to the High Court within
\n     fourteen days  from the  date of  commencement  of\t the
\n     trial and subject to any order as to security for costs
\n     which may\tbe made by the High Court, be entitled to be
\n     joined as a respondent”.\n<\/p><\/blockquote>\n
Sec. 87\t is concerned  with the\t procedure before  the\tHigh
\nCourt and it is as follows:\n<\/p>\n
325<\/span><\/p>\n
“87 (1)\t    Subject to the provisions of this Act and of any
\n\t  rules made  thereunder,  every  election  petition
\n\t  shall be tried by the High Court, as nearly as may
\n\t  be, in  accor-with the  procedure applicable under
\n\t  the Code  of Civil Procedure, 1908 to the trial of
\n\t  suits;\n<\/p>\n
\t       Provided that  the High\tCourt shall have the
\n\t  discretion to\t refuse, for  reasons to be recorded
\n\t  in writing, to examine any witness or witnesses if
\n\t  it is\t of the\t opinion that  the evidence  of such
\n\t  witness or  witnesses\t is  not  material  for\t the
\n\t  decision  of\t the  petition\tor  that  the  party
\n\t  tendering such witness or witnesses is doing so on
\n\t  frivolous grounds  or with  a view  to  delay\t the
\n\t  proceedings.\n<\/p>\n
     (2)   The provisions  of the Indian Evidence Act, 1872,
\n\t  shall, subject  to the  provisions of this Act, be
\n\t  deemed to apply in all respects to the trial of an
\n\t  election petition”.\n<\/p>\n
Sec. 90 enables the returned candidate or any other party to
\n‘recriminate’ in  cases where  in the  election\t petition  a
\ndeclaration  that   a  candidate  other\t than  the  returned
\ncandidate has  been elected  is claimed.  Sec. 98 prescribes
\nthe orders  that may  be made  by  the\tHigh  Court  at\t the
\nconclusion of the trial of an election petition. It provides
\nthat the  High Court  shall make  an  order  dismissing\t the
\nelection petition or declaring the election of all or any of
\nthe returned candidates to be void and the petitioner or any
\nother candidate\t to have been duly elected. Sec. 99, enables
\nthe High  Court to  make, at  the time of making order under
\nSec.98, an  order recording  a finding\twhether any  corrupt
\npractice has  or has  not been proved to have been committed
\nat the election, and the nature of corrupt practice; and the
\nnames of  all persons,\tif any,\t who have been proved at the
\ntrial to have been guilty of corrupt practice and the nature
\nof that\t practice. The\tproviso to  Sec.  99  (1),  however,
\nprescribes that no person who is not a party to the petition
\nshall be  named in the order unless he had been given notice
\nto appear  before the High Court to show cause why he should
\nnot be so named and he had also been given an opportunity to
\ncross examine  any witness  who had already been examined by
\nthe High  Court and  had given\tevidence against  him and an
\nopportunity of calling evidence in his
\n326<\/span>
\ndefence and  of being heard. Sec. 100 enumerates the grounds
\non which  an election  may be declared void. The High Court,
\nit is  said, among other grounds, shall declare the election
\nof  a\treturned  candidate  void  in  cases  where  corrupt
\npractices are  proved, where  such corrupt practice has been
\ncommitted by  a returned  candidate or his election agent or
\nby any\tother  person  with  the  consent  of  the  returned
\ncandidate or  his election agent. Where the corrupt practice
\nhas  been   committed  in  the\tinterests  of  the  returned
\ncandidate by  an agent\tother than  his election  agent, the
\nresult of the election in so far as it concerns the returned
\ncandidate  must\t also  be  shown  to  have  been  materially
\naffected. Sec.\t101  prescribes\t the  grounds  for  which  a
\ncandidate, other than the returned candidate may be declared
\nto have\t been elected.\tSec. 110  provides for the procedure
\nwhen an\t application for  withdrawal of an election petition
\nis made\t to the\t Court. Sec.  110 (3) (c) says that a person
\nwho might  himself have\t been a\t petitioner may apply to the
\nCourt to  be substituted  as a\tpetitioner in  place of\t the
\nparty withdrawing. Sec. 112 (3) provides for the continuance
\nof the election petition on the death of the sole petitioner
\nin an  election petition  or  of  the  survivor\t of  several
\npetitioners, by\t any person  who might\thimself have  been a
\npetitioner and\twho  applies  for  substitution\t within\t the
\nstipulated period.\n<\/p>\n
     The nature\t of the\t right to  elect, the  right  to  be
\nelected and  the right to dispute an election and the scheme
\nof the\tConstitutional and  statutory provisions in relation
\nto these  rights have  been explained  by the  Court in N.P.
\nPonnuswami v.  Returning Officer,  Namakkal  Constituency  &
\nOrs.,<\/a>(1) and  Jagan Nath  v. Jaswant Singh.<\/a>(2) We proceed to
\nstate what  we have gleaned from what has been said, so much
\nas necessary for this case.\n<\/p>\n
     A\tright\tto  elect,   fundamental  though  it  is  to
\ndemocracy, is,\tanomalously enough,  neither  a\t fundamental
\nright nor  a Common  Law Right.\t It is\tpure and  simple,  a
\nstatutory right.  So is\t the right  to be elected. So is the
\nright to  dispute an  election. Outside of statute, there is
\nno right  to elect,  no right  to be elected and no right to
\ndispute an  election.  Statutory  creations  they  are,\t and
\ntherefore, subject  to\tstatutory  limitation.\tAn  Election
\npetition is  not an  action at Common Law, nor in equity. It
\nis a  statutory proceeding  to which  neither the Common Law
\nnor the principles of Equity apply but
\n327<\/span>
\nonly those  rules which the statute makes and applies. It is
\na special  jurisdiction,  and  a  special  jurisdiction\t has
\nalways to  be exercised\t in accordance\twith  the  statutory
\ncreating it. Concepts familiar to Common Law and Equity must
\nremain\tstrangers   to\tElection   Law\tunless\t statutorily
\nembodied. A  Court  has\t no  right  to\tresort\tto  them  on
\nconsiderations of  alleged policy  because  policy  in\tsuch
\nmatters\t as   those,  relating\tto  the\t trial\tof  election
\ndisputes, is  what the\tstatute lays  down. In\tthe trial of
\nelection disputes,  Court is  put in a straight jacket. Thus
\nthe entire  election process commencing from the issuance of
\nthe notification  calling upon\ta constitutuency  to elect a
\nmember or  members right  up to\t the final resolution of the
\ndispute, if any, concerning the election is regulated by the
\nRepresentation of  the People Act, 1951, different stages of
\nthe process  being dealt with by different provisions of the
\nAct. There  can be  no election\t to Parliament\tor the State
\nLegislature except  as provided by the Representation of the
\nPeople\tAct   1951  and\t again,\t no  such  election  may  be
\nquestioned  except   in\t  the\tmanner\t provided   by\t the
\nRepresentation of  the People  Act. So the Representation of
\nthe People  Act has  been held\tto be  a complete  and\tself
\ncontained code within which must be found any rights claimed
\nin relation  to an  election or\t an election dispute. We are
\nconcerned with\tan election dispute. The question is who are
\nparties to  an election\t dispute and who may be impleaded as
\nparties to an election petition. We have already referred to
\nthe Scheme  of the Act. We have noticed the necessity to rid
\nourselves of  notions based  on Common Law or Equity. We see
\nthat we\t must seek an answer to the question within the four
\ncorners of the statute. What does the Act say?\n<\/p>\n
     Sec.  81\tprescribes  who\t  may  present\tan  election
\npetition. It  may be  any candidate at such election; it may
\nbe any\telector of  the constituency;  it may  be none else.
\nSec. 82\t is headed  “Parties to the petition” and clause (a)
\nprovides that  the petitioner  shall join  as respondents to
\nthe petition  the returned  candidates if the relief claimed
\nis confined to a declaration that the election of all or any
\nof the\treturned candidates  is void  and all the contesting
\ncandidates if  a  further  declaration\tis  sought  that  he
\nhimself or any other candidate has been duly elected. Clause\n<\/p>\n
(b) of Sec. 82 requires the petitioner to join as respondent
\nany other  candidate against whom allegations of any corrupt
\npractice are  made in  the petition. Sec. 86 (4) enables any
\ncandidate not  already\ta  respondent  to  be  joined  as  a
\nrespondent. There is no other provision dealing with
\n328<\/span>
\nquestion as  to who  may be  joined as\trespondents.  It  is
\nsignificant that  while clause\t(b) of\tSec. 82\t obliges the
\npetitioner to  join as\ta respondent  any candidate  against
\nwhom allegations  of any  corrupt practice  are made  in the
\npetition, it  does not\toblige the  petitioner to  join as a
\nrespondent any\tother person against whom allegations of any
\ncorrupt practice  are made.  It is  equally significant that
\nwhile any  candidate not  already a respondent may seek and,
\nif he  so seeks,  is entitled  to be  joined as a respondent
\nunder Sec.  86 (4),  any other\tperson\tcannot,\t under\tthat
\nprovision  seek\t  to  be   joined  as  respondent,  even  if
\nallegations of any corrupt practice are made against him. It
\nis clear  that the  contest  of\t the  election\tpetition  is
\ndesigned to  be confined  to the candidates at the election.
\nAll others  are excluded.  The ring  is closed to all except
\nthe petitioner\tand the\t candidates at the election. If such
\nis the\tdesign of the statute, how can the notion of ‘proper
\nparties’ enter\tthe picture  at all  ?\tWe  think  that\t the
\nconcept of  ‘proper parties’  is and must remain alien to an
\nelection dispute under the Representation of the People Act,
\n1951. Only those may be joined as respondents to an election
\npetition who are mentioned in Sec. 82 and Sec. 86 (4) and no
\nothers. However desirable and expedient it may appear to be,
\nnone else shall be joined as respondents.\n<\/p>\n
     It is  said, the  Civil Procedure\tCode applies  to the
\ntrial of  election petitions  and so  proper  parties  whose
\npresence may  be necessary  in order  to  enable  the  Court
\n‘effectually and  completely to\t adjudicate upon  and settle
\nall questions  involved’ may be joined as respondents to the
\npetitions. The\tquestions is not whether the Civil Procedure
\nCode applies  because it  undoubtedly does, but only ‘as far
\nas  may\t  be’  and   subject  to   the\tprovisions   of\t the
\nRepresentation of  the People  Act, 1951  and the rules made
\nthereunder. Sec.  87 (1)  expressly says so. The question is
\nwhether the  provisions of  the Civil  Procedure Code can be
\ninvoked to  permit that\t which\tthe  Representation  of\t the
\nPeople Act  does not.  Quite obviously the provisions of the
\nCode cannot  be so  invoked. In\t Mohan Raj v. Surendra Kumar
\nTaparia &  Ors.,<\/a>(1) this Court held that the undoubted power
\nof  the\t Court\t(i.e.  the  Election  Court)  to  permit  an
\namendment of  the petition  cannot be  used  to\t strike\t out
\nallegations against  a candidate  not joined as a respondent
\nso as  to save the election petition from dismissal for non-
\njoinder of necessary
\n329<\/span>
\nparties. It  was said, “The Court can order an amendment and
\neven strike  out a party who is not necessary. But where the
\nAct makes  a person  a necessary party and provides that the
\npetition shall\tbe dismissed  if such a party is not joined,
\nthe power  of amendment\t or to\tstrike out parties cannot be
\nused at all. The Civil Procedure Code applies subject to the
\nprovisions of  the Representation  of the People Act and any
\nrules made  thereunder. When  the Act enjoins the penalty of
\ndismissal of  the petition  for non-joinder  of a  party the
\nprovisions of  the Civil  Procedure Code cannot be used as a
\ncurative  means\t  to  save   the  petition.”  Again,  in  K.
\nVenkateswara Rao  &  Anr.  v.  Bekkam  Narasimha  Reddi\t and
\nOrs.,<\/a>(1) it was observed:\n<\/p>\n
\t  “With regard\tto the\taddition of parties which is
\n     possible in  the case of a suit under the provisions of
\n     O.l r.  10 subject\t to the added party right to contend
\n     that the  suit as\tagainst him was barred by limitation
\n     when he  was added,  no addition of parties is possible
\n     in the  case of  an election  petition except under the
\n     provisions of Sub-sec. (4) of Section 86”.<\/p><\/blockquote>\n
     The matter\t may be\t looked at  from another  angle. The
\nParliament has expressly provided that an opportunity should
\nbe given  to a\tperson who  is not a candidate to show cause
\nagainst being  ‘named’ as  one guilty of a corrupt practice.
\nParliament however, has not thought fit to expressly provide
\nfor his\t being joined  as a  party to  the election petition
\neither by  the election-petitioner or at the instance of the
\nvery person  against  whom  the\t allegations  of  a  corrupt
\npractice are  made. The right given to the latter is limited
\nto show\t cause against\t‘named’ and  that right opens up for
\nexercise when,\tat the\tend of\tthe trial  of  the  election
\npetition notice\t is given to him to show cause why he should
\nnot be\t‘named’. The  right does not extend to participation
\nat all\tstages and  in all  matters, a\tright which he would
\nhave if\t he is\tjoined\tas  a  party  at  the  commencement.
\nConversely the\telection petitioner  cannot by\tjoining as a
\nrespondent a  person who  is not a candidate at the election
\nsubject him  to a  prolonged trial  of an  election petition
\nwith all  its intricacies  and ramifications.  One may\twell
\nimagine how  mischievous minded\t persons may  harass  public
\npersonages like the Prime Minister of
\n330<\/span>
\nthe country,  the Chief\t Minister of  a State or a political
\nleader of  a national dimension by impleading him as a party
\nto election  petitions, all the country over. All that would
\nbe necessary  is a  seemingly plausible allegation, casually
\nor spitefully  made, with but a facade of truth. Everyone is
\nfamiliar with  such allegations.  To permit  such  a  public
\npersonage to be impleaded as a party to an election petition
\non the\tbasis of a mere allegation, without even prime facie
\nproof, an  allegation which  may ultimately  be found  to be
\nunfounded, can cause needless vexation to such personage and
\nprevent him  from the  effective  discharge  of\t his  public
\nduties. It  would be  against the  public interest to do so.
\nThe ultimate  award of\tcosts would  be no  panacea in\tsuch
\ncases, since the public mischief cannot be repaired. That is
\nwhy public  Policy and legislative wisdom both seem to point
\nto an interpretation of the provisions of the Representation
\nof the\tPeople Act  which does\tnot permit  the joining,  as
\nparties, of  persons other  than those mentioned in Sections
\n82 and\t86 (4). It is not as if a person guilty of a corrupt
\npractice can get away with it. Where at the concluding stage
\nof the\ttrial of  an election  petition, after\tevidence has
\nbeen  given,  the  Court  finds\t that  there  is  sufficient
\nmaterial to  hold a person guilty of a corrupt practice, the
\nCourt may  then issue  a notice\t to him\t to show cause under
\nSec. 99\t and proceed  with further  action. In\tour view the
\nlegislative provision contained in Sec. 99 which enables the
\nCourt, towards the end of the trial of an election petition,
\nto issue  a notice to a person not a party to the proceeding
\nto show\t cause why  he should  not be  ‘named’ is sufficient
\nclarification of the legislative intent that such person may
\nnot be\tpermitted to  be joined\t as a  party to the election
\npetition.\n<\/p>\n
     There is  yet another  view-point. When  in an election
\npetition in addition to the declaration that the election of
\nthe returned candate is void a further declaration is sought
\nthat any  candidate other  than the  returned candidate\t has
\nbeen duly elected, sec. 97 enables the returned candidate or
\nany other  party to  ‘recriminate’ i.e.\t to give evidence to
\nprove that  the election  of such  candidate would have been
\nvoid if\t he had been a returned candidate and a petition had
\nbeen presented\tto question his election. If a person who is
\nnot a  candidate but against whom allegations of any corrupt
\npractice are made is joined as a party to the petition then,
\nby virtue  of his  position as\ta party,  he would  also  be
\nentitled to  ‘recriminate’ under  sec.\t97.  Surely  such  a
\nconstruction of\t the statute  would throw  the doors  of  an
\nelection petition wide open and convert the petition into
\n331<\/span>
\na ‘free\t for all’ fight. A necessary consequence would be an
\nunending,  disorderly  election\t dispute  with\tno  hope  of
\nachieving the  goal contemplated  by Sec.  86(6) of  the Act
\nthat the  trial of the election petition should be concluded
\nin six\tmonths. It is just as well to remember that ‘corrupt
\npractice’ as  at present  defined by  Sec. 123 of the Act is
\nnot confined  to the  giving of\t a bribe  but extends to the
\ntaking of  a bribe too and, therefore, the number of persons
\nwho may\t be alleged  to be  guilty of a corrupt practice may
\nindeed be  very large, with the consequence that all of them
\nmay possibly be joined as respondents.\n<\/p>\n
     In view  of the  foregoing discussion  we\tare  of\t the
\nopinion that  no one may be joined as a party to an election
\npetition otherwise than as provided by Sections 82 and 86(4)
\nof the\tAct. It follows that a person who is not a candidate
\nmay not\t be joined as a respondent to the election petition.
\nThe appeal is therefore, allowed with costs and the names of
\nthe appellants\tand the seventh respondent in the appeal are
\ndirected to  be struck\tout from the array of parties in the
\nelection petition.  We may  mention that  in arriving at our
\nconclusion we  have also  considered the following decisions
\ncited before  us: S.B.\tAdityen &  Anr. v.  S. Kandaswami  &
\nOrs.,<\/a>(1) Dwijendra  Lal Sen  Gupta v.  Herekrishna Koner,(2)
\nH.R. Gokhale  v. Bharucha  Noshir C. & Ors.,(3) and S. Iqbal
\nSingh v. S. Gurdas Singh Badal & Ors.<\/a>(4)
\nN.V.K,\t\t\t\t\t      Appeal allowed
\n332<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982 Equivalent citations: 1982 AIR 983, 1982 SCR (3) 318 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: JYOTI BASU & OTHERS. Vs. RESPONDENT: DEBI GHOSAL & OTHERS. DATE OF JUDGMENT26\/02\/1982 BENCH: REDDY, O. CHINNAPPA (J) BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-26948","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jyoti-basu-others-vs-debi-ghosal-others-on-26-february-1982\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jyoti Basu & Others vs Debi Ghosal & Others on 26 February, 1982 - 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