{"id":61771,"date":"1972-04-12T00:00:00","date_gmt":"1972-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-narayanaswami-vs-g-pannerselvam-ors-on-12-april-1972"},"modified":"2016-09-28T06:58:34","modified_gmt":"2016-09-28T01:28:34","slug":"s-narayanaswami-vs-g-pannerselvam-ors-on-12-april-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-narayanaswami-vs-g-pannerselvam-ors-on-12-april-1972","title":{"rendered":"S. Narayanaswami vs G. Pannerselvam & Ors on 12 April, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. Narayanaswami vs G. Pannerselvam & Ors on 12 April, 1972<\/div>\n
Equivalent citations: 1972 AIR 2284, \t\t 1973 SCR (1) 172<\/div>\n
Author: M H Beg<\/div>\n
Bench: Sikri, S.M. (Cj), Grover, A.N., Ray, A.N., Palekar, D.G., Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nS.   NARAYANASWAMI\n\n\tVs.\n\nRESPONDENT:\nG.   PANNERSELVAM & ORS.\n\nDATE OF JUDGMENT12\/04\/1972\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nSIKRI, S.M. (CJ)\nGROVER, A.N.\nRAY, A.N.\nPALEKAR, D.G.\n\nCITATION:\n 1972 AIR 2284\t\t  1973 SCR  (1) 172\n 1972 SCC  (3) 713\n CITATOR INFO :\n E\t    1973 SC  38\t (11,19)\n F\t    1977 SC2328\t (11)\n R\t    1978 SC 897\t (7)\n RF\t    1980 SC1896\t (103)\n R\t    1981 SC1274\t (11)\n R\t    1992 SC  96\t (14)\n\n\nACT:\nConstitution   of   India  1950,  Arts.\t 171  to   173\t and\nRepresentation of the People Act (43 of 1951) s. 6-Candidate\nfrom  Graduates'  constituency\tto  Legislative\t  Council-If\nshould be a graduate.\n\n\n\nHEADNOTE:\nThe  respondent\t challenged the appellant selection  to\t the\nMadras\t Legislative,  Council\tfrom  the  Madras   District\nGraduates'  Constituency  on  the  grounds,  (1)  that,\t the\npurpose\t of  Art. 171 of the Constitution was  to  confer  a\nright  of functional representation upon persons  possessing\ncertain\t educational  or other qualifications  so  that\t the\nappellant who was not a graduate could not be elected to the\nLegislative  Council from the Graduates'  Constituency;\t (2)\nthat,  it would be absurd and destructive of the concept  of\nrepresentation\tthat an individual, who did not possess\t the\nessential or basic qualification of the electors, should  be\ntheir representative, and (3), that, the Constitution, being\nan  organic instrument, must be interpreted in a  broad\t and\nliberal\t manner\t so  as to give\t effect\t to  the  underlying\nprinciples  and\t purposes of the  system  of  representation\nsought to be embodied in it.\nThe High Court set aside the election.\nAllowing the appeal to this Court,\nHELD:\t(1)  (a)  Graduates  are  not  an  occupational\t  or\nvocational  group,  but\t merely\t a  body  of  persons\twith\nparticular educational qualifications.\tIt would, therefore,\nnot  be\t correct to describe the  additional  representation\nsought to be given to them in the Legislative Council as  an\nattempt\t   to\t introduce    functional    or\t  vocational\nrepresentation. [181B]\n(b)  The  qualifications  of the  elector  constituting\t the\nelectorate, and of those who can represent each electorate,\ncontemplated   by  the\tConstitution  and  supplemented\t  by\nParliament,  are  separately  set out for  each\t House.\t  As\nregards the Legislative Council, the qualifications for\t the\nfour electorates are indicated in Art. 171 (3) (a), (b), (c)\nand  (d).   The\t plain\tand ordinary  meaning  of  the\tterm\n\"electorate is that it is the body of persons who elect.  It\ndoes  not take in the extended notion of a body\t of  persons\nelecting  representatives from amongst themselves.  It\tdoes\nnot  impose a requirement that the person to be chosen\tmust\nalso be a member of the electorate. [177D-F]\n (c)  The  qualifications  of candidates for  seats  in\t the\nCouncil\t are  given  in s. 6 of the  Representation  of\t the\nPeople\tAct,  1951.   While  a\tmember\tof  the\t Legislative\nAssembly should also be an elector in the constituency\tfrom\nwhich  he stands, the member of the Legislative\t Council  is\nnot so required to be a member of the electorate.  All\tthat\nis  required is that the person to be chosen as a member  of\nthe Legislative Council should be an elector for an Assembly\nconstituency in the State to whose Legislative Council he is\nchosen. [179E]\n(d)  Whatever may have been the opinions of the Constitution\nmakes  or  their advisors it is not possible to\t say,  on  a\nperusal of Art. 171, that the Second Chamber found here were\nmeant to provide for functional\n173\nor  vocational representation.\tAR that can be\tinferred  is\nthat  additional  representation or weightage was  given  to\npersons possessing special types of knowledge and experience\nby  enabling  them to elect their  special  representatives.\nThe  concept of such representation does not carry  with  it\nthe  further  notion  that,  the  representative  must\talso\npossess the very qualifications of those he represents.\t The\nHigh Court erroneously travelled outside the four corners of\nthe statutory provisions when there was no ambiguity at\t all\nin the language, and by resorting to a presumed\t legislative\nintent,\t it added a qualification to those  expressly  laid\ndown in the Constitution and other statutory provisions.  [1\n80F]\nDavies Jankins & Co. v. Davies, 1967 (2) W.L.R. p. 1139 (a_)\n1156, inferred to.\n2(a) Article 171 is designed only to give a right to  choose\ntheir  representatives\tto those who have certain  types  of\npresumably   valuable  knowledge  and  education.   If\t the\npresumption  of their better competence to elect a  suitable\nrepresentative is there, it would be for the members of such\na  constituency\t themselves to decide whether a\t person\t who\nstands\tfor election from their constituency  possesses\t the\nright  type  of\t knowledge-,  experience  and  wisdom.\t The\nConstitution makers, acting on such a presumption, may\thave\nintentionally\tleft  the  educational\t qualifications\t  of\ncandidate  for\telection  from\tthe  Graduates\tConstituency\nunspecified.\n[181C]\n(b)  It could not possibly be said that the question  to  be\ndealt with was not known to the legislators.  The provisions\nof law show that the qualifications of the electors as\twell\nas  of\tthose  to  be elected  were  matters  to  which\t the\nattention of the law makers, both in the Constituent  Assem-\nbly  and in Parliament, was specifically  directed.   Hence,\nthe omission must have been deliberate. [181G]\nR.   v.\t Cleworth,  (1864) 4 BSS 927 and Craies\t on  Statute\nLaw6th Edn. 1963 72, referred to.\n(c)  The legislative history of the Article also shows\tthat\nthe omission by the Constitution makers or by Parliament, to\nprescribe  graduation  as a qualification of  the  candidate\nfrom  the  Graduates'  constituency,  was  deliberate.\t The\nprovisions   of\t  the  Government   of\t India\t (Provincial\nLegislative   Assemblies)  Order,  1936,   prescribing\t the\nqualifications\t of  persons  to  be  chosen  from   special\nconstituencies set up for representation in the\t Legislative\nCouncils  under the Government of India Act, 1935,  indicate\nthat  it was invariably expressly provided where it  was  so\nintended, that a necessary qualification of a candidate\t for\na seat was that he should be entitled to vote for the choice\nof  a member to fill it.  Such a qualification was not\tleft\nto mere implication. [181H-182E]\n(3)  It is true that a constitution should be interpreted in\na broad and generous spirit, but the rule of \"plain meaning\"\nor   \"literal\"\tinterpretation\tcould  not   altogether\t  be\nabandoned.  The object of interpretation is to discover\t the\nintention of the law makers, and this object can  obviously\nbe  best achieved by first looking at the language  used  in\nthe relevant provisions.  A logical corollary of the rule of\nliteral interpretation is that a statute may not be extended\nto  meet  a  case  for\twhich  provision  has  clearly\t and\nundoubtedly  not been made; and an application of this\trule\nnecessarily  involves that addition to, or modification\t of,\nwords\tused  in  statutory  provisions\t is  not   generally\npermissible.  Courts may depart from this rule only to avoid\na patent absurdity. [175D]\nSri  Ram Narain Medhi & Ors. v. The State of Bombay,  A.I.R.<\/a>\n1959  S.C.  459; British India General\tInsurance  Co.\tLtd.\nv.Captain\n174\nitbar  Singh  & Ors., [1960] 1 S.C.R. 168; R.  C.  Jacob  v.\nUnion of India,<\/a> [1963] 3 S.C.R. 800; State of Madhya Pradesh\nv.  M\/s.  Azad Bharat Finance Co. & Anr.  A.I.R.<\/a>  1967\tS.C.\n276; Hira Devi v. District Board, Shabiahanpur, A.I.R.\t1952\nS.C. 362 & 365, referred to.\nFrom  the  language as well as the  legislative\t history  of\nArts.  171  and\t 173 of the Constitution and  s.  6  of\t the\nRepresentation of the People Act, 1951, it could be presumed\nthat   the   omission\tof  the\t  qualification\t  that\t the\nrepresentative\tof  graduate should also be a  graduate\t was\ndeliberate.   By  presuming  such an intention\tof  the\t law\nmakers,\t no  absurdity\tresults.  By adding  'deemed  to  be\nnecessary' or 'implied' qualification of a representative of\nthe  graduates, which the Constitution makers or  Parliament\ncould easily have imposed, the Court would be invading the\nlegislative sphere. [183F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: C.A. No. 189 of 1971.
\nAppeal\tunder  Section 116-A of the  Representation  of\t the
\nPeople\tAct, 1951 from the judgment and order dated  January
\n8, 1971 of the Madras High Court in Election Petition No.  1
\nof 1970.\n<\/p>\n
V. P. Raman and Vineet Kumar, for the appellant.
\nJagdish Swarup, Socilitor-General of India, B. D. Sharma and
\nS.   P. Nayar, for the Election Commission of India.
\nB.   Sen  and  Sobhag Mal Jain, for the\t Supreme  Court\t Bar
\nAssociation.\n<\/p>\n
The Judgment of the Court was delivered by
\nBeg, J. This is an appeal under Section 116-A of the  Repre-
\nsentation  of People Act, 1951.\t The  appellant’s  election,
\nheld  on 11-4-1970, to the Madras Legislative  Council\tfrom
\nthe Madras District Graduates’ Constituency was set aside by
\na learned Judge of the Madras High Court who decided all the
\nissues\texcept\tone in favour of the  appellant.   The\tonly
\nissue decided against the appellant, which is now before us,
\nwas framed as follows :\n<\/p>\n
\t      “Whether\t the   first  Respondent   was\t not
\n\t      qualified\t to  stand  for\t election to   the
\n\t      Graduates\t Constituency on all or any  of\t the
\n\t      grounds set out by the petitioner in paragraph
\n\t      7 to 9 of the election Petition” ?\n<\/p><\/blockquote>\n
Paragraphs  7  to  9 of the election  petition\tagainst\t the
\nappellant are lengthy, prolix, and argumentative.  The\tcase
\nand the contentions of the Respondent G. Panneerselvam,\t the
\npetitioner before the High Court, which were accepted by the
\nHigh Court, may be summarised as follows
\nFirstly,   the\t whole\tpurpose\t of  Article  171   of\t the
\nConstitution   was   to\t confer\t a  right   of\t “functional
\nrepresentation” upon persons possessing certain\t educational
\nor other qualifications so that the Appellant Narayanaswami,
\nwho had only passed the High School Leaving Examination\t and
\nwas not a Graduate, could not be elected
\n\t\t\t    175<\/span>
\nat  all\t to  the Legislative  Council  from  the  Graduates’
\nConstituency;  secondly, it would be absurd and\t destructive
\nof   the  very\tconcept\t of  representation  of\t  especially
\nqualified  persons that an individual who does\tnot  possess
\nthe essential or basic qualification of the electors  should
\nbe  a  representative  of those who are\t to  be\t represented
\nbecause\t of  this  special  qualification  of  theirs;\tand,
\nthirdly,  the Constitution, being an organic instrument\t for
\nthe  governance\t of  the  land, must  be  interpreted  in  a
\nparticularly  broad and liberal manner so as to give  effect
\nto  the underlying principles and purposes of the system  of
\nrepresentation\tsought to be set up by it and not in such  a
\nway as to defeat them.\tHence, the educational qualification
\nof the electors should be read into the system of  represen-
\ntation set up by the Constitution for Legislative,  Councils
\nas   a\tnecessary  qualification  of  candidates   in\tsuch
\nconstituencies.\n<\/p>\n
Authorities  are certainly not wanting which  indicate\tthat
\nCourts\tshould interpret in a broad and generous spirit\t the
\ndocument  which contains the fundamental law of the land  or
\nthe  basic principles of its Government.  Nevertheless,\t the
\nrule   of  “plain  meaning  or\t “literal”   interpretation,
\ndescribed  in Maxwell’s Interpretation of Statutes  as\t“the
\nprimary\t rule”, could not be altogether abandoned  today  in
\ninterpreting  any document.  Indeed, we find Lord  Evershed,
\nM.R., saying: “The length and detail of modern\tlegislation,
\nhas undoubtedly reinforced the claim of literal construction
\nas the only safe rule”. (See : Maxwell on “Interpretation of
\nStatutes”  12th\t Edition p. 28).  It may be that  the  great
\nmass of modem legislation, a large part of which consists of
\nstatutory rules, makes some departure from the literal\trule
\nof interpretation more easily justifiable today than it\t was
\nin  the\t past,\tBut, the object\t of  interpretation  and  of
\n“construction” (which may be broader than  “interpretation”)
\nis to discover the intention of the law makers in every case
\n(See:  Crawford\t on “Statutory Construction” 1940  Ed.\tpara
\n157,  p.  240-242).   This object can,\tobviously,  be\tbest
\nachieved  by  first  looking at the  language  used  in\t the
\nrelevant  provisions.\tOther  methods\tof  extracting\t the
\nmeaning\t can  be resorted to only if the  language  used  is
\ncontradictory, ambiguous, or leads really to absurd results.
\nThis  is an elementary and basic rule of  interpretation  as
\nwell  as of construction-processes which, from the point  of
\nview  of principles applied, coalesce and  converge  towards
\nthe common purpose of both which is to get at the real sense
\nand  meaning, so far as it may be reasonably possible to  do
\nthis,  of  what is found laid down.   The  provisions  whose
\nmeaning\t is  under  consideration  have,  therefore,  to  he
\nexamined before applying any method of construction at\tall.
\nTo these provisions we may now turn.\n<\/p>\n
Article 168 of our Constitution shows that the State  Legis-
\nlatures\t in nine States in India, including Madras, were  to
\nconsist\t of  two Houses : the Legislative Assembly  and\t the
\nLegislative, Coun-\n<\/p>\n
176<\/span><\/p>\n
cil.  Article 170 lays down that the Legislative Assembly of
\neach  State  “shall  consist of\t members  chosen  by  direct
\nelection  from territorial constituencies in the  State,  in
\nsuch  a\t manner\t as the Parliament may\tby  law\t determine”.
\nAfter  that,  comes Article 171 which may be  reproduced  in
\ntoto here:\n<\/p>\n
“1.71(1)  The  total number of members\tin  the\t Legislative
\nCouncil\t of a State having such a Council shall\t not  exceed
\none third of the total number of members in the\t Legislative
\nAssembly of that State,:\n<\/p>\n
Provided that the total number of members in the Legislative
\nCouncil of a State shall in no case be less than forty.
\n(2)  Until   Parliament\t by  law  otherwise  provides,\t the
\ncomposition  of the Legislative Council of a State shall  be
\nas provided in clause (3).\n<\/p>\n
(3)  of\t the  total  number of members\tof  the\t Legislative
\nCouncil of a State-\n<\/p>\n
(a)  as\t nearly\t as may be, one-third shall  be\t elected  by
\nelectorates   consisting  of  members\tof   municipalities,
\ndistrict  boards  and such other local\tauthorities  in\t the
\nState as Parliament may by law specify;\n<\/p>\n
(b)  as\t nearly as may be, one-twelfth shalt be\t elected  by
\nelectorates consisting of persons residing in the State\t who
\nhave  been  for\t at  least  three  years  graduates  of\t any
\nuniversity  in\tthe territory of India or have been  for  at
\nleast three years in possession of qualifications prescribed
\nby or under any-law made by Parliament as equivalent to that
\nof a graduate of any such university;\n<\/p>\n
(c)  as\t nearly as may be. one-twelfth shall be, elected  by
\nelectorates consisting of persons who have been for at least
\nthree\tyears  engaged\tin  teaching  in  such\t educational
\ninstitutions  within the State, not lower in  standard\tthan
\nthat of a secondary school, as may be prescribed by or under
\nany law made by Parliament;\n<\/p>\n
(d)  as nearly as may be, one-third shall be elected by\t the
\nmembers\t of  the  Legislative Assembly\tof  the\t State\tfrom
\namongst persons who are not members of the Assembly.\n<\/p>\n
(e)  the  remainder  shall be nominated by the\tGovernor  in
\naccordance with the provisions of clause
\n(5). (4) The members to be elected under sub-clauses(a), (b)
\nand  (c) of clause (3) shall be chosen in  such\t territorial
\nconstituencies as may be prescribed by or under any law made
\nby Parliament,, and the elections under
\n177<\/span>
\nthe  said sub-clauses and under sub-clause (d) of  the\tsaid
\nclause\tshall be held in accordance with the system of\tpro-
\nportional representation by means of the single transferable
\nvote.\n<\/p>\n
(5)  The members to be nominated by the Governor under\tsub-
\nclause\t(2)  of clause (3) shall consist of  persons  having
\nspecial knowledge or practical experience in respect of such
\nmatters as the following namely:-\n<\/p>\n
Literature,  Science, Art. cooperative movement\t and  social
\nservice.”\n<\/p>\n
The  term “electorate”, used in Article 171(3) (a)(b) &\t (c)
\nhas  neither  been defined by the Constitution\tnor  in\t any
\nenactment by Parliament.  Sec. 2(1)(e) of the Representation
\nof People Act 43 of 1951, however, says :\n<\/p>\n
\t      ”\t ‘elector,’  in relation to  a\tconstituency
\n\t      means  a person whose name is entered  in\t the
\n\t      electoral\t roll of that constituency  for\t the
\n\t      time being in force and who is not subject  to
\n\t      any of the disqualifications mentioned in Sec.
\n\t      16  of the Representation of the\tPeople\tAct,
\n\t      1950″.\n<\/p><\/blockquote>\n
The plain and ordinary meaning of the term ” electorate”  is
\nconfined  to  the body of persons who elect.   It  does\t not
\ncontain, within its ambit, the extended notion of a body  of
\npersons electing representatives “from amongst\tthemselves”.
\nThus, the use of the term “electorale” in Article 171(3)  of
\nour Constitution, could not, by itself, impose a limit\tupon
\nthe  field  of\tchoice\tof  members  of\t the  electorate  by
\nrequiring that the person to be chosen must also be a member
\nof  the\t electorate.   The qualifications  of  the  electors
\nconstituting the “electorate” and of those who can represent
\neach  ”\t electorate”, contemplated by the  constitution\t and
\nthen supplemented by Parliament, are separately set out\t for
\neach  house.   We may glance at the provisions\trelating  to
\nLegislative Assemblies first.\n<\/p>\n
Section\t 16 of the Representation of People Act 43  of\t1950
\nlays  down  the qualifications of an elector  negatively  by
\nprescribing who shall be disqualified for registration in an
\nelectoral roll.\t A disqualified person is one who :\n<\/p>\n
(a)  is not a citizen of India; or\n<\/p>\n
(b)  is\t of  unsound  mind  and\t stands\t so  declared  by  a
\ncompetent court; _or\n<\/p>\n
(c)  is\t for the time being disqualified from  voting  under
\nthe provisions of any law relating to corrupt practices\t and
\nother offences in connection with elections”.
\nSection 19 lays down the two conditions for registration  on
\nthe  electoral\troll of a constituency.\t The  person  to  be
\nregistered  must  not be less than 21 years of\tage  on\t the
\nqualifying date and must
\n178<\/span>
\nbe ordinarily resident in the constituency.  The persons  so
\nregistered,  whose  names  appear  on  the  electoral  roll,
\nconstitute  the electorato for the legislative\tAssembly  of
\neach State.  Section 5 of the Representation of People\tAct,
\n43 of 1.951 enacts :\n<\/p>\n
\t      “5.   Qualifications  for\t membership   of   a
\n\t      Legislative Assembly:-\n<\/p><\/blockquote>\n
\t      A\t person shall not be qualified to be  chosen
\n\t      to fill a seat  in the Legislative Assembly of
\n\t      a State unless-\n<\/p><\/blockquote>\n
\t      (a)   in\tthe case of a seat reserved for\t the
\n\t      Scheduled\t Castes or for the Scheduled  Tribes
\n\t      of that State, he is a member of any of  those
\n\t      castes or of those tribes, as the case may be,
\n\t      and  is  an elector for any  Assembly  consti-
\n\t      tuency in that State;\n<\/p><\/blockquote>\n
\t      (b)   in\tthe case of a seat reserved  for  an
\n\t      autonomous  district  of Assam, other  than  a
\n\t      seat the constituency for which comprises\t the
\n\t      cantonment and municipality of Shillong, he is
\n\t      a\t  member  of  a\t Scheduled  Tribe   of\t any
\n\t      autonomous district and is an elector for\t the
\n\t      Assembly\tconstituency in which such  seat  or
\n\t      any other seat is reserved for that  district;
\n\t      and\n<\/p><\/blockquote>\n
\t      (c)   in the case of any other seat, he is  an
\n\t      elector for any Assembly constituency in\tthat
\n\t      State”;\n<\/p><\/blockquote>\n
Coming\tto  the\t Legislative  Council,\twe  find  that\t the
\nqualifications\tfor the four “electorates” are indicated  by
\nArt.  171(3)(a)(b)(c)  & (d).  And,  the  qualifications  of
\ncandidates  for seats in a Legislative Council are given  in
\nSection\t 6  of the Representation of People Act 43  of\t1951
\nwhich lays down:\n<\/p>\n
\t      “6.   Qualifications  for\t membership   of   a
\n\t      Legislative Council.-\n<\/p><\/blockquote>\n
\t      (1)   A  person shall not be qualified  to  be
\n\t      chosen  to  fill\ta seat\tin  the\t Legislative
\n\t      Council  of a State to be filled\tby  election
\n\t      unless he is an elector for any Assembly\tcon-
\n\t      stituency in that State.\n<\/p><\/blockquote>\n
\t      (2)   A  person shall not be qualified  to  be
\n\t      chosen  to  fill\ta seat\tin  the\t Legislative
\n\t      Council of a State to be filled by  nomination
\n\t      by  the  Governor\t unless\t he  is\t  ordinarily
\n\t      resident in the State”.\n<\/p><\/blockquote>\n
A look at Article 171(2), set out above, indicates that\t the
\ncomposition  of\t the Legislative Council of a  State  was  a
\nmatter\tto be also provided for by law made  by\t Parliament.
\nIt  is\tevident that the constitution  makers  had  directed
\ntheir attention specifically towards the methods of election
\nand composition of the legislature
\n179<\/span>
\nof   each   State.    They   themselves\t  prescribed\tsame
\nqualifications\tto be possessed by members of each House  of
\nthe Legislature.  Article 173 lays down :-\n<\/p>\n
\t      “173.   A person shall not be qualified to  be
\n\t      chosen to fill a seat in the Legislature of  a
\n\t      State unless he-\n<\/p><\/blockquote>\n
\t      (a)   is\ta  citizen of India, and  makes\t and
\n\t      subscribes  before some person  authorised  in
\n\t      that behalf by the Election Commission an oath
\n\t      or  affirmation according to the form set\t out
\n\t      for the purpose in the Third Schedule;\n<\/p><\/blockquote>\n
\t      (b)   is,\t in  the  case\tof  a  seat  in\t the
\n\t      Legislative  Assembly, not less  than  twenty-
\n\t      five  years of age and, in the case of a\tseat
\n\t      in  the  Legislative Council,  not  less\tthan
\n\t      thirty years of age; and\n<\/p><\/blockquote>\n
\t      (c)   possesses  such other qualifications  as
\n\t      may  be prescribed in that behalf by or  under
\n\t      any law made by Parliament”.\n<\/p><\/blockquote>\n
An important and very noticeable difference between,  quali-
\nfications  prescribed by Parliament for the membership of  a
\nLegislative  Assembly by Section 5 of the Representation  of
\nPeople\tAct  of\t 1951  and those for  the  membership  of  a
\nLegislative Council by Section 6 of that Act is that, so far
\nas a member of the Legislative Assembly is concerned, he  or
\nshe  has to be an Elector in the Constituency from which  he
\nor  she stands, but a member of a Legislative Council  in  a
\nState  is  not, similarly, required to be a  member  of\t the
\nelectorate.   All that Parliament says, in Section 6 of\t the
\nRepresentation\tof People Act, 1951, is that the, person  to
\nbe  chosen as a member of the Legislative Council has to  be
\n“an  elector for any Assembly constituency” in the State  to
\nwhose legislative Council he was to be chosen.\tHe has to be
\n“ordinarily   resident”\t  in  the  State  to   qualify\t for
\nnomination.  No other qualifications, apart from those found
\nin  Article  173 of the Constitution and Section  6  of\t the
\nRepresentation\tof People Act of 1951, are to be found\tlaid
\ndown anywhere.\tBut, an additional qualification was  found,
\nby the judgment under appeal before us, to exist by resort-‘
\ning  to a presumed legislative intent and then.\t practically
\nadding it to those expressly laid down.\n<\/p>\n
It  may\t be possible to look for  legislative  intention  in
\nmaterials  outside the four-corners of a statute  where\t its
\nlanguage is really ambiguous or conflicting.  But, where  no
\nsuch difficulty arises, the mere fact that the intentions of
\nthe  law makers, sought to be demonstrated by what was\tsaid
\nby  some  of  them  or\tby  those  advising  them  when\t the
\nConstitution  was on the anvil, were really  different\tfrom
\nthe  result which clearly follows from language used in\t the
\nLegislative   provisions  under\t consideration,\t could\t not
\nauthorise   the\t  use  of  such\t an  exceptional   mode\t  of
\nconstruction.  “It is well accepted”, said Lord Morris (See:
\nDavies Jankins &
\n180<\/span>
\nCo. v. Davies)’, “that the beliefs and assumptions of  those
\nwho frame Acts of Parliament cannot make the law”.
\nThe  judgment under appeal, after discussing the  manner  in
\nwhich  Article\t171 of the Constitution was framed  and\t the
\ndifferent  views  expressed about the nature of\t the  Second
\nChambers  to  be  set up by it in our States,  says  :\t“The
\nsystem\tof  functional, which is  also\tcalled\toccupational
\nrepresentation,\t   as\tdistinguished\t from\t territorial
\nrepresentation, was borrowed from the Irish Constitution and
\nthat  is  the  underlying principle  in\t Article  171.\t The
\nopinion of political thinkers and statement on the wisdom of
\nsuch  representation may not be unanimous.  Whatever be\t the
\ndivergent  views, the accomplished fact in the\tConstitution
\nis that such a representation has been given recognition and
\nit has to be implemented.  In making the Legislative Council
\nas  a representative body, the framers of  the\tConstitution
\nhave not made it exclusively one of elected  representatives
\naccording  to  their occupations.  It is intended  to  be  a
\nhetergenous and more broad based body consisting of  persons
\nof different walks of life, some elected and some nominated,
\neach with the experience in his own field of activity”.\t The
\nlearned\t Judge\tconcluded; “It is with\tthese  objects\tthat
\nclauses\t (a),,\t(b),  and (c) of Article  171(3)  have\tbeen
\nconceived so that persons in those walks of life could\tmake
\ntheir  contribution  to\t the Legislative  functions  of\t the
\nState.\t Article  1.71\tin fixing  the\tcomposition  of\t the
\nLegislative  Council  as  a  functional\t chamber.  has\talso
\nindirectly   laid  down\t certain  qualifications  and\talso
\ndisqualifications of members to be elected thereunder”.
\nWhatever  may have been the opinions of Constitution  makers
\nor of their advisers, whose views are cited in the  judgment
\nunder  appeal, it is not possible to. say, on a perusal\t of
\nArticle\t 171 of the Constitution, that the  Second  Chambers
\nset up in nine States in India were meant to incorporate the
\nprinciple  of what is known as “functional” or\t“vocational”
\nrepresentation\twhich has been advocated by  Guild-Socialist
\nand Syndicalist Schools of political thought. , Some of\t the
\nobservations  quoted  above, in the  judgment  under  appeal
\nitself,\t militate with the conclusions reached\tthere.\t All
\nthat we can infer from our Constitutional provisions is that
\nadditional representation or weightage was given to  persons
\npossessing  special  type  of knowledge\t and  experience  by
\nenabling  them to elect their special  representatives\talso
\nfor    Legislative   Councils.\t  The\tconcept\t  of\tsuch
\nrepresentation\tdoes  not  carry with  it,  as\ta  necessary
\nconsequence, the further notion that the representative must
\nalso possess the very qualifications of those he represents.
\nIn  the case of the Graduates’ constituency, it is  provided
\nin Article 171(3)(b) that the electors must have held  their
\ndegrees
\n(1)  1967 2 W.L.R. p. 11 39 @ 11 56.\n<\/p>\n
181<\/span><\/p>\n
for  at\t least three years before they become  qualified  an
\nelectors.   Thus,. in laying down the test of competence  of
\nvoters of such a constituency, more possession of degrees by
\nthem was not considered sufficient.  Moreover, graduates are
\nnot an occupational or vocational group but merely a body of
\npersons\t with  an  educational\tqualification.\t It   would,
\ntherefore,  not\t be  correct  to  describe  the\t  additional
\nrepresentation\tsought to be given to them as an attempt  to
\nintroduce  the “functional” or “vocational”  principle.\t  On
\nthe  face of it, Article 171 appears to be designed only  to
\ngive  a right to choose their representatives to  those\t who
\nhave  certain  types of presumably  valuable  knowledge\t and
\neducation.  If the presumption of their better competence to
\nelect  a suitable representative in there, as we think\tthat
\nthere  must  be,  it  would be for the\tmembers\t of  such  a
\nconstituency  themselves  to  decide whether  a\t person\t who
\nstands\tfor election from their constituency  possesses\t the
\nright  type  of\t knowledge,  experience,  and  wisdom  which
\nsatisfy\t certain  standards.   It  may\twell  be  that\t the
\nconstitution  makers,  acting upon such a  presumption,\t had
\nintentionally  left  the  educational  qualifications  of  a
\ncandidate  for\telection  from\tthe  graduates\tconstituency
\nunspecified.\n<\/p>\n
A  test laid down by Blackburn J. in R. v.  Cleworth(1),  to
\ndetermine  what\t the correct presumption,  arising  from  an
\nomission  in  a\t statute should be,  was  whether  what\t was
\nomitted\t but  sought to be brought  within  the\t legislative
\nintention  was\t“known”\t to  the  law  makers,\tand   could,
\ntherefore, be “supposed to have been omitted intentionally”.
\n“It  makes no difference”, says Craies ‘in “Statute  Law”(2)
\n“that the omission on the part of the legislature was a mere
\noversight,  and that without doubt the Act would  have\tbeen
\ndrawn  otherwise had the attention of the  legislature\tbeen
\ndirected  to  the oversight at the time the  Act  was  under
\ndiscussion”.   In the case before us, it could not  possibly
\nbe  said that the question to be dealt with was not  “known”
\nto  the,  legislators.\t It  could not\teven  be  said\tthat
\nqualifications\tof the electors\/-as well as of those  to  be
\nelected\t were not matters to which the attention of the\t law
\nmakers, both in the Constituent Assembly and in\t Parliament,
\nwas not specially directed at all or that the omission\tmust
\nbe  by\tmere  oversight.   The\tprovisions  discussed  above
\ndemonstrate amply how legislative attention was paid to\t the
\nqualifications,\t of the electors ‘as well as of the  elected
\nin  every case.\t Hence, the correct presumption, in  such  a
\ncase, would be that the omission was deliberate.
\nA glance at the legislative history lying behind Article 171
\nalso enables us to reach the conclusion that the omission by
\nthe  Constitution  makers  or  by  Parliament  to  prescribe
\ngraduation as
\n(1)  [1864] 4 BSS 927, 934
\n(2)  Crains on Statute Law-5th En. 1963 P. 72.\n<\/p>\n
182<\/span><\/p>\n
must be deliberate.  Sections 60 and 61 of the Government of
\nIndia  Act,  1935,  deal  with\tcomposition  of\t  Provincial
\nlegislatures  and of the two Chambers of such  legislatures.
\nThe Upper Chambers in the Provincial Legislatures were to be
\ncomposed of members retiring every third year in  accordance
\nwith  provisions of the Fifth Schedule to the Act.  Rule  10
\nof this Schedule lays down:\n<\/p>\n
\t      “In  a Province in which any seats are  to  be
\n\t      filled by representatives of backward areas or
\n\t      backward tribes, representatives of  commerce,
\n\t      industry, mining and planting, representatives
\n\t      of     landholders,     representatives\t  of
\n\t      universities  or\trepresentatives\t of  labour,
\n\t      persons  to fill\tthose  seats…………….
\n\t      shall  be\t chosen\t in such manner\t as  may  be
\n\t      prescribed”.\n<\/p><\/blockquote>\n
On  30th  April, 1936, the Government of  India\t (Provincial
\nLegislative  Assemblies)  Order of 1936 was  issued  by\t His
\nMajesty\t in  Council.  It prescribed the  qualifications  of
\npersons\t to be chosen from the “special constituencies”\t set
\nup for representation in the Legislative Councils, A  glance
\nat   the  provisions  relating\tto   these   qualifications,
\nincluding those for the University seats, indicates that  it
\nwas invariably expressly provided, where it was so intended,
\nthat a necessary qualification of a candidate for a seat was
\nthat he or she should be “entitled to vote for the choice of
\na  member  to fill it”.\t Hence, legislative history  on\t the
\nsubject\t  would\t  also\t indicate.   that,   whenever\t any
\nqualification  of the candidate was intended to be  imposed,
\nthis was expressly done and not left to mere implications.
\nWe  think  that\t the view contained in\tthe  Judgment  under
\nappeal,\t necessarily results in writing some words  into  or
\nadding\tthem  to the relevant statutory\t provisions  to\t the
\neffect that the candidates from graduates’ constituencies of
\nLegislative Councils must also possess the qualification  of
\nhaving\tgraduated.   This  contravenes the  rule  of  “Plain
\nmeaning”  or  “literal” construction which  must  ordinarily
\nprevail.   A  logical  corollary of that  rule\tis  that  “a
\nstatute\t may  not  be  extended to meet\t a  case  for  which
\nprovision  has clearly and undoubtedly not been made”  (See:
\nCraies\ton Statute Law-6th Edn. p. 70).\t An  application  of
\nthe   rule   necessarily  involves  that  addition   to\t  or
\nmodification  of words used in statutory provisions  is\t not
\ngenerally permissible (see e.g. Sri Ram Narain Medhi &\tOrs.
\nv.  The State of Bombay<\/a>(1), British India General  Insurance
\nCo.  Ltd. v. Captain Itbar Singh & Ors.<\/a> (2), R. G. Jacob  v.
\nUnion  of India<\/a>(3).  Courts may deppart from this rule\tonly
\nto  avoid  a  patent absurdity (see e.g.  State\t ‘of  Madhya
\nPradesh v. M\/s.\t Azad Bharat Finance Co. & Anr.<\/a>(4). In\tHira
\nDevi v. District Board, Shahiahanpur(5), this Court observed
\n(1)  AIR 1959 S.C. 459.\t (2) [1960] 1 SCR 168. (3) [1963]  3
\nSCR 800.\n<\/p>\n
(4) A.T.R. 1967 S.C. 276.\t(5) A.T.R. 1952 SC 362@ 365.\n<\/p>\n
\t\t\t    183<\/span><\/p>\n
\t      “No  doubt it is the duty of the Court to\t try
\n\t      and harmonise the various provisions of an Act
\n\t      passed   by  the\tLegislature.   But   it\t  is
\n\t      certainly not the duty of the Court to stretch
\n\t      the  words used by the Legislature to fill  in
\n\t      gaps  or\tomissions in the  provisions  of  an
\n\t      Act”.\n<\/p><\/blockquote>\n
Cases  in, which defects in statutory provisions may or\t may
\nnot be supplied by Courts have been indicated in well  known
\nworks  such  as Sutherland’s “Statutory\t Construction”\t(3rd
\nEdn.(Vol.  2)  (Paragraph  4924 at  pages  455-558)  and  in
\nCrawford’s “Construction of statutes” (1940 Edn.). Only\t one
\npassage from the last mentioned work need be cited here: (p.\n<\/p>\n
269) :\n<\/p>\n
\t       “Where  the  statutes meaning  is  clear\t and
\n\t      explicit,\t words cannot be  interpolated.\t  In
\n\t      the first place, in such a case, they are\t not
\n\t      needed.\tIf they should be interpolated,\t the
\n\t      statute would more than likely fail to express
\n\t      the   legislative\t intent,  as   the   thought
\n\t      intended\tto be conveyed might be\t altered  by
\n\t      the addition of new words.  They should not be
\n\t      interpolated  even  though the remedy  of\t the
\n\t      statute  would thereby be advanced, or a\tmore
\n\t      desirable\t or just result would  occur.\tEven
\n\t      where the meaning of the statute is clear\t and
\n\t      sensible,\t either with or without the  omitted
\n\t      word,  interpolation  is improper,  since\t the
\n\t      primary source of the legislative intent is in
\n\t      the language of the statute”.\n<\/p><\/blockquote>\n
We  think  that\t the language as  well\tas  the\t legislative
\nhistory\t of  Articles 171 and 173 of  the  Constitution\t and
\nSection 6 of the Representation of People Act, 1951,  enable
\nus  to\tpresume a deliberate omission of  the  qualification
\nthat  the representative of the Graduates should also  be  a
\ngraduate.   In\tour  opinion, no  absurdity  results  if  we
\npresume such an intention.  We cannot infer, as the  learned
\nJudge of the Madras High Court had done, from the mere\tfact
\nof  such  an omission and opinions about a  supposed  scheme
\n“functional  representation” underlying Article 171  of\t our
\nConstitution, that the omission was either unintentional  or
\nthat  it led to absurd results.\t We think that, by adding  a
\ndeemed\tto  be\tnecessary  or  implied\tqualification  of  a
\nrepresentative\tof  the\t Graduates  which  the\tConstitution
\nmakers, or, in any event, the Parliament, could have  easily
\nimposed,   the\t learned  Judge\t had  really   invaded\t the
\nLegislative  sphere.  The defect, if. any, in the law  could
\nbe removed only by law made by Parliament.\n<\/p>\n
We   conclude,\t after\t considering   all   the    relevant
\nconstitutional\tand  statutory provisions  relating  to\t the
\nqualifications\t of  a\tcandidate  for\telection  from\t the
\nGraduates’  constituency of the Legislative Council  of\t the
\nMadras\t State,\t that  the  appellant  possesses   all\t the
\nqualifications laid down for such a candidate.\n<\/p>\n
184<\/span><\/p>\n
Therefore, we allow this appeal, set aside the Judgment\t and
\norder\tof   the  Madras  High\tCourt,\tand   dismiss\tthe,
\nRespondent’s  election petition.  The appellant is  entitled
\nto his costs throughout.\n<\/p>\n
V.P.S.\t\t\t\t\t\t      Appeal\nallowed.\n185<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. Narayanaswami vs G. Pannerselvam & Ors on 12 April, 1972 Equivalent citations: 1972 AIR 2284, 1973 SCR (1) 172 Author: M H Beg Bench: Sikri, S.M. (Cj), Grover, A.N., Ray, A.N., Palekar, D.G., Beg, M. Hameedullah PETITIONER: S. NARAYANASWAMI Vs. RESPONDENT: G. PANNERSELVAM & ORS. DATE OF JUDGMENT12\/04\/1972 BENCH: BEG, […]<\/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-61771","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. Narayanaswami vs G. 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