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PETITIONER: KIRPAL SINGH, M.L.A.

       Vs.

RESPONDENT: UTTAM SINGH & ANR.

DATE OF JUDGMENT09/10/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J) KHALID, V. (J)

CITATION:  1986 AIR  300            1985 SCR  Supl. (3) 622  1985 SCC  (4) 621        1985 SCALE  (2)749

ACT:      Constitution of  India, 1950 - Article 191 (1) (a) read with section  10 of  the Representation  of the  People Act, 1951  Disqualification   for  membership,  applicability  to Public Sector  Undertakings -  Right to be elected and Right to speak  for the  people are  questions to  be  decided  by Parliament and  not by  the Court - Nature of interim orders to be  passed by  the Court  in an  election appeal when the election was set aside on grounds not covered by part VII of the Act, explained.

HEADNOTE:      The appellant  Kirpal Singh  was elected  to the Punjab Legislative  Assembly   from  Majitha  constituency  at  the general elections  held in  1972. His election was set aside by High  Court in  an Election  Petition filed by one of the defeated candidates  on the ground that the nomination paper of  another   candidate  was   improperly  rejected  by  the Returning Officer  for the  reason that he was a development officer in  the employment of the Life Insurance Corporation under whose Staff Regulations he was prohibited from seeking election. The  High Court  was of  the view  that the  staff regulations could,  at best,  make Basant  Singh  liable  to disciplinary action  only. In  the appeal under section 116A of the  Representation of  the People  Act, 1951,  the Court passed an interim order enabling the appellant to attend the assembly and sign the register, without participating in the proceedings or voting, and without drawing any remuneration. Subsequent to  the filing  of the  appeal, there  were three general elections  with the  result the appeal became wholly infructuous.      Disposing of the appeal, the Court, ^      HELD : 1.1. Where an election is set aside for no fault of the  duly elected  candidate, such  as a corrupt practice committed by him or his agent or a disqualification suffered by him, but on the ground that someone else’s nomination had been improperly rejected, the more appropriate interim order would perhaps  be to  grant an  absolute stay  so  that  the

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Constituency may not go unrepresented for no fault of either the elected or those who elected. [624 C-D] 623      1.2 The  awarding of  the costs  by the  High Court, in such circumstances  is  uncalled  for.  The  appellant  will receive his   remuneration  for the  period for which he was elected as a legislator. [626 C-D]      1.3 The clear and undoubted object of Article 191(1)(a) to (e)  and the  provisions of  the  Representation  of  the People Act (including section 10) is the preservation of the purity and  integrity of  the election process by preventing Government or  State  employees  from  taking  part  in  the elections. Nowadays  the activities  of  the  State  are  so manifold and prolific that the State has been forced, in the interests of  better management  and administration  and  in order to  further the  Directive Principles of State Policy, to  set   up  various   Corporations  which   are  but  mere instrumentalities of  the State.  Whether the  principle  of Article 191(1)(a)  has to  be extended to employees of State Corporations  and   other  Public   Sector  Undertakings  by suitable legislation is a question of policy better left to, be decided  by the  elected representatives  of  the  people themselves and  not to  the Court whose decision can only be confined to interpretation. [625 E-H; 626 A]      The Court recommended to the Government to have several questions posed  before it  examined by  the Law  Commission early.)

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No.  650 (NCE) of 1975.      From the  Judgment and  Order dated  14.3. 1975  of the Punjab and Haryana High Court in Election Petition No. 27 of 1972.      R.K.  Garg,  A.K.  Ganguli,  M.M.  Kshatriya  and  Mrs. Vandana Sharma for the Appellant.      G.L. Sanghi,  P.H. Parekh  and  P.K.  Manohar  for  the Respondents .      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. Shri  Kirpal Singh  was elected to the Punjab Legislative Assembly from Majitha Constituency at the general  elections held  in 1972.  His election  was set aside by  High Court in an Election Petition filed by one of the defeated  candidates on  the ground  that the nomination paper of  another candidate  was improperly  rejected by the Returning Officer. The 624 nomination paper  of One  Basant Singh  had been rejected on the ground  that Basant  Singh was  a development officer in the employment  of the  Life Insurance  Corporation and  was therefore ineligible  to seek election to the Assembly under the Staff Regulations of the Life Insurance Corporation. The High Court  took the  view that  if Basant  Singh defied the Staff Regulations  and sought  election to  the Assembly  he might have  made himself  liable to  disciplinary action but that did  not disqualify  him from  seeking election  to the Assembly. So  the nomination  paper of Basant Singh was held to have  been improperly rejected and the election of Kirpal Singh was  set aside.  His election having been set aside he appealed  to   this  Court   under  Section   116-A  of  the Representation  of  the  People  Act.  While  admitting  the appeal, this  Court  made  an  interim  order  enabling  the appellant to  attend the  Assembly and  sign  the  register,

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without participating  in  the  proceedings  or  voting  and without drawing  any remuneration.  With-  out  meaning  any disrespect to  the learned judges who made the interim order we think that where an election is set aside for no fault of his, such  as a  corrupt practice  committed by  him or  his agent or  a disqualification  suffered by  him, but  on  the ground that  someone else’s  nomination had  been improperly rejected, the  more appropriate  order would  perhaps be  to grant an  absolute stay  so that the Constituency may not go unrepresented for  no fault  of either  the elected or those who elected.      Subsequent to the filing of the appeal, there have been three more  general elections.  The present  appeal has thus become wholly  infructuous, indeed  a sad  commentary on the legal process.  Though the  question raised  is an important one which  may arise again and again in the future we do not propose to make any pronouncement upon it since we think the matter is  one which should receive the consideration of the Parliament and  suitable legislation  be enacted. Under Art. 191(1) of  the Constitution  a person  shall be disqualified for being  chosen  as,  and  for  being,  a  member  of  the Legislative Assembly or Legislative Council of a State -           (a) if  he holds  any office  of profit  under the           Government of India or the Government of any State           specified in  the First  Schedule, other  than  an           office declared by the Legislature of the State by           law not to disqualify its holder ;           (b) if  he  is  of  unsound  mind  and  stands  so           declared by a competent court; 625           (c) if he is an undischarged insolvent;           (d) if  he is  not a  citizen  of  India,  or  has           voluntarily acquired  the citizenship of a foreign           State,  or   is  under   any  acknowledgement   of           allegiance or adherence to a foreign State;           (e) if  he is  so disqualified by or under any law           made by Parliament. Chapter III  of the  Representation of  the People Act which certainly is  a law made by Parliament within the meaning of Art. 191(1)(e)  of the  Constitution enumerates some further grounds of disqualification for membership of Parliament and State Assemblies.  In particular  we may refer to Section 10 which says,           "Disqualification  for   office  under  Government           Company -  A person  shall be disqualified If, and           for so long as, he is a managing agent, manager or           secretary of  any company  or  corporation  (other           than a  co-operative society)  in the  capital  of           which the appropriate Government has not less than           twenty-five per cent share."      The clear and undoubted object of Art. 191(1)(a) to (e) and the  provisions of  the Representation of the People Act (including sec.  10) is  the preservation  of the purity and integrity of  the election  process by preventing Government or State  employees from  taking part  in the elections. But then sec.  10 appears to confine the disqualification, in so far as  it relates  to employees  of Government Companies to the ’top-brass’  only if  such an  uncouth expression may be allowed to  creep into the judgment of a Court. Nowadays the activities of  the State  are so  manifold and prolific that the State  has been  forced,  in  the  interests  of  better management and  administration and  in order  to further the Directive Principles  of State  Policy, to  set  up  various Corporations which  are but  mere instrumentalities  of  the State. Is  the  principle  of  Art.  191(1)(e)  then  to  be

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extended to employees of State Corporations also by enacting appropriate laws  under Art.  191(1)(e)? Or are employees of Public Corporations to be treated differently from employees of the Government? Are not some of them in a better position to exert undesirable pressure, than Government employees? On the other hand, are a tremendously large number of employees of Public Corporations to be denied the opportunity of being chosen, as representatives of the People? Do 626 all the  considerations applicable  to Government  Employees equally apply to employees of Public Sector Undertakings? Is there no  distinguishing feature. Are a large mass of highly or moderately  literate people  to be  denied the  right  to speak for  the people?  Is the  right to  be elected,  to be confined, without  meaning any  disrespect to  anyone to the professional politicians  only? These  are some of the vital questions posed  and  which  require  to  be  answered.  The answer  should be best given  by the elected representatives of the  people themselves.   We  are   not   shirking    the decision of  these questions  but our  decision can  only be confined to  interpretation. Not  so, Parliament  which  can decide upon  the Policy.  That is  why, we  recommend to the Government to have the matter examined by the Law Commission very early. When a suitable occasion arises in the future we will, of  course, deal  with the  matter, probably helped by new legislation.      The High Court has awarded costs against the appellant. That was  uncalled for. We set aside that part of the order. We express  no opinion on the other questions. The appellant will receive  his remuneration  for the  period for which he was elected as a legislator. S.R. 627