http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: JYOTI BASU & OTHERS.

       Vs.

RESPONDENT: DEBI GHOSAL & OTHERS.

DATE OF JUDGMENT26/02/1982

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) PATHAK, R.S.

CITATION:  1982 AIR  983            1982 SCR  (3) 318  1982 SCC  (1) 691        1982 SCALE  (1)115  CITATOR INFO :  F          1983 SC1311  (7,16)  R          1984 SC 135  (8)  RF         1985 SC 150  (26)  E          1985 SC1133  (20)  F          1987 SC1577  (14)

ACT:      Representation of  the People  Act 1951,  Ss. 82 and 86 (4) Election  Petition-Parties to-Who  are-Corrupt  practice alleged against  person who  is not  a candidate-Such person whether can be impleaded as respondent.      Election Law-Right  to elect-Neither  fundamental right nor Common  Law right-Statutory  right subject  to statutory limitations.      Code of  Civil Procedure  1908 Or.1  r.  10-Concept  of ’proper parties’-Applicability of to election petitions.

HEADNOTE:      The Representation  of the  People Act 1951, by Section 81 prescribes  who may  present an election petition. It may be by  any candidate at such election, by any elector of the constituency, and  by  none  else.  Section  82  clause  (a) provides that  the petitioner  in an election petition shall join as  respondents to the petition the returned candidates if the  relief claimed is confined to a declaration that the election of  all or  any of  the returned candidates is void and all  the contesting  candidates if a further declaration is sought  that he  himself or  any other candidate has been duly  elected.  Clause  (b)  of  the  section  requires  the petitioner  to  join  as  respondents  any  other  candidate against whom allegations of any corrupt practice are made in the petition.  Section 86  (4)  enables  any  candidate  not already a respondent to be joined as respondent.      The first appellant in the appeal is the Chief Minister and appellants  2 and  3  State  Ministers.  They  had  been impleaded by  the first respondent as parties to an election petition filed  by him  in the  High Court  questioning  the election of  the second  respondent  to  the  House  of  the People. It  was averred  in the  election petition  that the Chief Ministers  and the  State ministers who were impleaded as  parties  to  the  election  petition  had  colluded  and conspired with  the returned  candidate  to  commit  various

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

alleged corrupt  practices. The Chief Minister and the other Ministers denied  the  commission  of  the  various  alleged corrupt practices  and claimed  that the election petitioner was not  entitled to implead them as parties to the election petition, as  they were not candidates at the election. They filed an  application before  the High  Court to  strike out their names  from the  array  of  parties  in  the  election petition. It was dismissed on the ground that the appellants were proper  parties to  the election petition and therefore their names could not be struck out of the array of parties, 319      In the appeal to this Court, it was contended on behalf of the appellants that the concept of a proper party was not relevant in  election law  and that only those persons could be impleaded as parties who were expressly directed to be so impleaded by  the Representation of the People Act 1951, and that they  were entitled  to be struck out from the array of parties. On  behalf of the first respondent it was submitted that the  appellants were  proper parties  to  the  election petition and  their presence  was necessary  for a complete, final and  expeditious decision on the questions involved in the action.      Allowing the Appeal, ^      HELD: 1. No one can be joined as a party to an election petition otherwise  than as provide by Section 82 and 86 (4) of the  Representation of  the people Act 1951. A person who is not  a candidate may not be joined as a respondent to the election petition [331 C-D]      In the instant case the names of the appellants and the 7th respondent  in the  appeal are directed to be struck out from the array of parties in the election petition. [331 D]      2. A  right to  elect,  fundamental  though  it  is  to democracy, is, anomalously neither a fundamental right nor a Common Law  Right. It  is a statutory right. So is the right to be elected, and the right to dispute an election. Outside of statute,  there is  no right  to elect,  no right  to  be elected, and  no right  to dispute  an  election.  Statutory creations they  are, and  therefore,  subject  to  statutory limitation. An  Election petition is not an action at Common Law, nor  in equity.  It is  a statutory proceeding to which neither the  Common Law  nor the  principles of Equity apply but only those rules which the statute makes and applies. It is a  special jurisdiction,  and a  special jurisdiction has always to  be  exercised  in  accordance  with  the  statute creating it. Concepts familiar to Common Law and Equity must remain  strangers   to  Election   Law  unless   statutorily embodied. A  Court  has  no  right  to  resort  to  them  on considerations of  alleged policy  because  policy  in  such matters,  as  those,  relating  to  the  trial  of  election disputes, is  what the  statute lays  down. In  the trial of election disputes,  Court is  put in a straight jacket. [326 F-H; 327 A-B]      3. The  contest of the election petition is designed to be confined  to the  the candidates  at  the  election.  All others are  excluded. The  ring is  closed to all except the petitioner and  the candidates  at the election. Such is the design of the statute. [328 C]      4.  While   clause  (b)   of  section  82  obliges  the petitioner in  an election  petition to join as a respondent any  candidate  against  whom  allegations  of  any  corrupt practice are  made in  the petition,  it does not oblige the petitioner to  join as a respondent any other person against whom allegations of any corrupt practice are made. While any candidate not  already a  respondent may  seek and, if he so

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

seeks, is  entitled to  be  joined  as  a  respondent  under section  86   (4),  any  other  person  cannot,  under  that provision seek  to  be  joined  as  a  respondent,  even  if allegations of  any corrupt  practice are  made against him. [328 A-C] 320      5. The  concept of  ‘proper parties’ is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election  petition who  are mentioned  in section  82 and section  86   (4)  and  no  others.  However  desirable  and expedient it  may appear  to be none else shall be joined as respondents. [328 D]      6. The provisions of the Civil Procedure Code cannot be invoked to  permit that  which  the  Representation  of  the People Act  1951 does  not permit.  The Civil Procedure Code applies subject  to the  provisions of the Representation of the People Act 1951 and any rule made thereunder. Section 87 (1) expressly  says so . When the Act enjoins the penalty of dismissal of  the petition  for non-joinder  of a  party the provisions of  the Civil  Procedure Code cannot be used as a curative means to save the petition. [328 F-H; 329 A-C]      Mohan Raj v. Surendra Kumar Taparia & Ors. [1961] 1 SCR and R.  Venkateswara Rao & Anr. v. Bekkam  Narasimha Reddi & Ors. [1969]1 SCR 679, referred to.      7.  Parliament   has   expressly   provided   that   an opportunity should  be given  to  a  person  who  is  not  a candidate to  show cause against being ’named’ as one guilty of a  corrupt practice. Parliament, however, has not thought fit to  expressly provide for his being joined as a party to the election  petition either  by the election-petitioner or at  the  instance  of  the  very  person  against  whom  the allegations of  a corrupt practice are made. The right given to the latter is limited to show cause against being ’named’ and that right opens up for exercise when, at the end of the election petition  notice is  given to him to show cause why he should  not be  ’named’. The  right does  not  extend  to participation at  all stages  and in  all matters,  a  right which he  would have  if he  is joined  as a  ’party’ at the commencement. [329 E-G]      8 (i)  The election  petitioner cannot  by joining as a respondent a  person who  is not a candidate at the election subject him  to a  prolonged trial  of an  election petition with all its intricacies and ramifications. [329-G]      (ii)  Mischievous  minded  persons  may  harass  public personages like the Prime Minister of the country, the Chief Minister of  a State  or a  political leader  of a  national dimension  by   impleading  him   as  a  party  to  election petitions. All  that  would  be  necessary  is  a  seemingly plausible allegation,  casually or spitefully made, with but a facade  of truth.  To permit such a public personage to be impleaded as a party to an election petition on the basis of a  mere  allegation,  without  even  prima  facie  proof  an allegation which  may ultimately  be found  to be unfounded, can cause  needless vexation  to sush  personage and prevent him from  the effective  discharge of  his public duties. It would be  against the public interest to do so. The ultimate award of  costs would be no panacea in such cases, since the public  mischief  cannot  be  repaired.  Public  Policy  and legislative wisdom  both point to an interpretation that the provisions of the Representation of the People Act 1951 does not permit  the joining,  as parties  of persons  other than those mentioned in sections 82 and 86 (4). [329 H; 330 A-D] 321      9 (i)  The legislative  provisions contained in section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

99 enables  the Court,  towards the  end of  the trial of an election petition, to issue a notice to a person not a party to the  proceedings to  show cause  why  he  should  not  be ’named’ is  a sufficient  clarification of  the  legislative intent that such person may not be permitted to be joined as a party to the election petition. [330 E-F]      9 (ii)  If a  person who is not a candidate but against whom allegations  of any corrupt practice are made is joined as a  party he would also be entitled to ’recriminate’ under section 97.  Such a  construction of the statute would throw the doors  of an election wide open and convert the petition into a ’free for all’ fight. The necessary consequence would be an  unending, disorderly election dispute with no hope of achieving the  goal contemplated  by sec.  86 (6) of the Act that the  trial of the election petition should be concluded in six months.                                             [330 H; 331 A-B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1553 of 1980.      Appeal by  special leave  from the  judgment and  order dated the  3rd July,  1980 of  the Calcutta  High  Court  in Election Petition Case No. 1 of 1980.      Somnath Chatterjee,  Rathin Das  and Aninda  Mitter for the Appellants.      Sidhartha Shankar Ray, R.K. Lala and T.V.S.N. Chari for Respondent No. 1.      The Judgment of the Court was delivered by      CHINNAPPA REDDY, J. The first appellant, Jyoti Basu, is the Chief  Minister and  appellants two  and three  Budhadeb Bhattacharya and  Hashim Abdul  Halim, are  two Ministers of the Government  of West  Bengal. They have been impleaded by the first  respondent as  parties to  an  election  petition filed  by   him  questioning  the  election  of  the  second respondent  to   the  House  of  the  People  from  the  19- Barrackpore  Parliamentary   Constituency  in  the  mid-term Parliamentary election  held in  January, 1980.  There  were five candidates  who sought  election from the Constituency. Mod. Ismail,  the first  respondent, whose  candidature  was sponsored by  the Communist  Party of  India (Marxist)  was, elected securing  2,66,698 votes  as against  Debi Ghosal, a candidate sponsored  by the  Indian National Congress led by Smt. Indira  Gandhi who  secured 1,62,770  votes. The  other candidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan Mishra secured  25,734, 12,271 and 2,763 votes respectively. The first  respondent filed an election petition in the High Court of 322 Calcutta questioning  the election  of the second respondent Mohd. Ismail  on various  grounds. He impleaded the returned candidate as  the first  respondent,  and  the  other  three unsuccessful candidates  respondents  2,  3  and  4  to  the election petition.  Besides the  candidates at the election, he impleaded  several others  as respondents.  The  District Magistrate and  Returning Officer was impleaded as the fifth respondent,  Buddhadeb   Bhattacharya,  the   Minister   for Information and  Publicity, Government of West Bengal as the sixth respondent.  Jyoti Basu,  the Chief  Minister  as  the seventh respondent,  Md. Amin, the Minister of the Transport Branch of  the Home  Department as  the  eighth  respondent, Hashim Abdul  Halim, the Minister of the Legislative and the Judicial  Department   as  the   ninth  respondent  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

Electoral Registration  Officer as  the tenth respondent. It was averred in the election petition that the Chief Minister and the other Ministers of the Government of West Bengal who were impleaded  as parties  to  the  election  petition  had colluded and conspired with the returned candidate to commit various alleged  corrupt practices.  Apart from  denying the commission of  the various  alleged corrupt  practices,  the Chief Minister  and the  other Ministers  claimed  in  their written statements  that the  election  petitioner  was  not entitled  to   implead  them  as  parties  to  the  election petition. They  claimed that  as they were not candidates at the election  they could  not be impleaded as parties to the election petition.  The Chief  Minister and two of the other Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya filed an  application before  the High  Court of Calcutta to strike out  their names  from the  array of  parties in  the election petition.  The application  was  dismissed  by  the Calcutta High  Court  on  the  ground  that  the  applicants (appellants) were  proper parties  to the  election petition and, therefore,  their names should not be struck out of the array of  parties. The appellants have preferred this appeal after obtaining  special leave  of this Court under Art. 136 of the Constitution.      Shri  Somnath   Chatterjee,  learned  counsel  for  the appellant submitted  that the  concept of a proper party was not relevant  in election  law and  that only  those persons could be impleaded as parties who were expressly directed to be so  impleaded by  the Representation  of the  People Act, 1951. He claimed that in any case such persons were entitled to be  struck out  from the  array of  parties. On the other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned counsel  for   the  first   respondent  submitted  that  the appellants were  proper parties to the election petition and their presence was 323 necessary for  a complete, final and expeditious decision on the questions involved in the action.      To properly  appreciate the  rival  contentions  it  is necessary  to  refer  to  the  relevant  provisions  of  the Constitution of  India and  the two  Representation  of  the People Acts of 1950 and 1951.      First the  Constitution. Part  XV deals with elections. Art.   324    vests   in   the   Election   Commission   the superintendence, direction and control of the preparation of the Electoral  rolls and  the conduct  of all  elections  to Parliament and  to the  Legislatures of the States. Art. 325 provides that  there shall be one general electoral roll for every territorial  constituency and  that no person shall be ineligible for  inclusion in  such rolls  on grounds only of religion, caste,  sex or any of them. Art. 326 provides that election to  the House  of the People and to the Legislative Assemblies  of  States  shall  be  on  the  basis  of  adult franchise. Art.  327 enables  Parliament to  make laws  with respect to all matters relating to elections to either House of Parliament  or to  the Houses  of the  Legislature  of  a State. Art.  328 enables  the Legislature  of  a  State,  if Parliament has  not made such legislation, to make laws with respect to  all matters  relating to elections to the Houses of the  Legislature of the State. Art. 329 bars interference by  Courts   in  electoral   matters  and   clause  (b),  in particular, provides  that no  election to  either House  of Parliament  or   to  the   House  or  either  House  of  the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as  may be  provided for  by or under any law made by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

the appropriate legislature.      Next, the  Representation of People Act, 1950. This Act provides for  the delimitation of the Constituencies for the purpose of  elections to  the House  of the  people and  the legislatures of  States, the qualification of voters at such elections, the  preparation of  electoral  rolls  and  other matters connected therewith.      Last, the  Representation of  the People  Act of  1951, Part  VI   of  the   Act  deals   with  "Disputes  regarding elections". Sec.  79 defines  various terms  and expressions used  in  the  Parts  VI  and  VII.  Clause  (b)  defines  a ’candidate’ as  meaning "a  person who has been or claims to have been duly nominated as a candidate at any election, and any such  person shall be deemed to have been a candidate as from the  time when, with the election in prospect, he began to 324 hold himself  out  as  a  prospective  candidate".  Sec.  80 imposes a  statutory ban  on an  election  being  called  in question  except   by  an  election  petition  presented  in accordance with  the provisions  of Part VI of the Act. Sec. 80-A vests  in the  High Court,  the jurisdiction  to try an election petition.  Sec. 81 provides for the presentation of an election petition on one or more of the grounds specified in Sec.  100 (1)  and Sec.  101 by  any  candidate  at  such election or  any elector  who was  entitled to  vote at  the election. Sec.  82 is entitled "Parties to the petition" and is as follows:      "82. Parties to the petition-A petitioner shall join as           respondents to his petition-           (a)  Where the petitioner, in addition to claiming                a declaration that the election of all or any                of the  returned candidate  is void  claims a                further declaration  that he  himself or  any                other candidate  has been  duly elected,  all                the  contesting  candidates  other  than  the                petitioner,  and   where  no   such   further                declaration  is  claimed,  all  the  returned                candidates; and           (b)   any other candidate against whom allegations                of any  corrupt  practice  are  made  in  the                petition".      Sec. 83  prescribes the  contents of the petition. Sec. 84 provides that a petitioner may, in addition to claiming a declaration that  the election  of the returned candidate is void, claim  a further  declaration that  he himself  or any other candidate  has been  duly elected.  Sec. 86 deals with trial of  election petitions.  Sub-Sec. (4)  provides for an application by  a candidate  who is not already a respondent to be joined as a respondent. It is in these terms:           "(4) Any candidate not already a respondent shall,      upon application  made by  him to the High Court within      fourteen days  from the  date of  commencement  of  the      trial and subject to any order as to security for costs      which may  be made by the High Court, be entitled to be      joined as a respondent". Sec. 87  is concerned  with the  procedure before  the  High Court and it is as follows: 325 "87 (1)     Subject to the provisions of this Act and of any           rules made  thereunder,  every  election  petition           shall be tried by the High Court, as nearly as may           be, in  accor-with the  procedure applicable under           the Code  of Civil Procedure, 1908 to the trial of           suits;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

              Provided that  the High  Court shall have the           discretion to  refuse, for  reasons to be recorded           in writing, to examine any witness or witnesses if           it is  of the  opinion that  the evidence  of such           witness or  witnesses  is  not  material  for  the           decision  of   the  petition  or  that  the  party           tendering such witness or witnesses is doing so on           frivolous grounds  or with  a view  to  delay  the           proceedings.      (2)   The provisions  of the Indian Evidence Act, 1872,           shall, subject  to the  provisions of this Act, be           deemed to apply in all respects to the trial of an           election petition". Sec. 90 enables the returned candidate or any other party to ’recriminate’ in  cases where  in the  election  petition  a declaration  that   a  candidate  other  than  the  returned candidate has  been elected  is claimed.  Sec. 98 prescribes the orders  that may  be made  by  the  High  Court  at  the conclusion of the trial of an election petition. It provides that the  High Court  shall make  an  order  dismissing  the election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate  to have been duly elected. Sec. 99, enables the High  Court to  make, at  the time of making order under Sec.98, an  order recording  a finding  whether any  corrupt practice has  or has  not been proved to have been committed at the election, and the nature of corrupt practice; and the names of  all persons,  if any,  who have been proved at the trial to have been guilty of corrupt practice and the nature of that  practice. The  proviso to  Sec.  99  (1),  however, prescribes that no person who is not a party to the petition shall be  named in the order unless he had been given notice to appear  before the High Court to show cause why he should not be so named and he had also been given an opportunity to cross examine  any witness  who had already been examined by the High  Court and  had given  evidence against  him and an opportunity of calling evidence in his 326 defence and  of being heard. Sec. 100 enumerates the grounds on which  an election  may be declared void. The High Court, it is  said, among other grounds, shall declare the election of  a   returned  candidate  void  in  cases  where  corrupt practices are  proved, where  such corrupt practice has been committed by  a returned  candidate or his election agent or by any  other  person  with  the  consent  of  the  returned candidate or  his election agent. Where the corrupt practice has  been   committed  in  the  interests  of  the  returned candidate by  an agent  other than  his election  agent, the result of the election in so far as it concerns the returned candidate  must  also  be  shown  to  have  been  materially affected. Sec.  101  prescribes  the  grounds  for  which  a candidate, other than the returned candidate may be declared to have  been elected.  Sec. 110  provides for the procedure when an  application for  withdrawal of an election petition is made  to the  Court. Sec.  110 (3) (c) says that a person who might  himself have  been a  petitioner may apply to the Court to  be substituted  as a  petitioner in  place of  the party withdrawing. Sec. 112 (3) provides for the continuance of the election petition on the death of the sole petitioner in an  election petition  or  of  the  survivor  of  several petitioners, by  any person  who might  himself have  been a petitioner and  who  applies  for  substitution  within  the stipulated period.      The nature  of the  right to  elect, the  right  to  be elected and  the right to dispute an election and the scheme

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

of the  Constitutional and  statutory provisions in relation to these  rights have  been explained  by the  Court in N.P. Ponnuswami v.  Returning Officer,  Namakkal  Constituency  & Ors.,(1) and  Jagan Nath  v. Jaswant Singh.(2) We proceed to state what  we have gleaned from what has been said, so much as necessary for this case.      A  right   to  elect,   fundamental  though  it  is  to democracy, is,  anomalously enough,  neither  a  fundamental right nor  a Common  Law Right.  It is  pure and  simple,  a statutory right.  So is  the right  to be elected. So is the right to  dispute an  election. Outside of statute, there is no right  to elect,  no right  to be elected and no right to dispute an  election.  Statutory  creations  they  are,  and therefore, subject  to  statutory  limitation.  An  Election petition is  not an  action at Common Law, nor in equity. It is a  statutory proceeding  to which  neither the Common Law nor the principles of Equity apply but 327 only those  rules which the statute makes and applies. It is a special  jurisdiction,  and  a  special  jurisdiction  has always to  be exercised  in accordance  with  the  statutory creating it. Concepts familiar to Common Law and Equity must remain  strangers   to  Election   Law  unless   statutorily embodied. A  Court  has  no  right  to  resort  to  them  on considerations of  alleged policy  because  policy  in  such matters  as   those,  relating  to  the  trial  of  election disputes, is  what the  statute lays  down. In  the trial of election disputes,  Court is  put in a straight jacket. Thus the entire  election process commencing from the issuance of the notification  calling upon  a constitutuency  to elect a member or  members right  up to  the final resolution of the dispute, if any, concerning the election is regulated by the Representation of  the People Act, 1951, different stages of the process  being dealt with by different provisions of the Act. There  can be  no election  to Parliament  or the State Legislature except  as provided by the Representation of the People  Act   1951  and  again,  no  such  election  may  be questioned  except   in   the   manner   provided   by   the Representation of  the People  Act. So the Representation of the People  Act has  been held  to be  a complete  and  self contained code within which must be found any rights claimed in relation  to an  election or  an election dispute. We are concerned with  an election dispute. The question is who are parties to  an election  dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme  of the Act. We have noticed the necessity to rid ourselves of  notions based  on Common Law or Equity. We see that we  must seek an answer to the question within the four corners of the statute. What does the Act say?      Sec.  81   prescribes  who   may  present  an  election petition. It  may be  any candidate at such election; it may be any  elector of  the constituency;  it may  be none else. Sec. 82  is headed  "Parties to the petition" and clause (a) provides that  the petitioner  shall join  as respondents to the petition  the returned  candidates if the relief claimed is confined to a declaration that the election of all or any of the  returned candidates  is void  and all the contesting candidates if  a  further  declaration  is  sought  that  he himself or any other candidate has been duly elected. Clause (b) of Sec. 82 requires the petitioner to join as respondent any other  candidate against whom allegations of any corrupt practice are  made in  the petition. Sec. 86 (4) enables any candidate not  already  a  respondent  to  be  joined  as  a respondent. There is no other provision dealing with 328

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

question as  to who  may be  joined as  respondents.  It  is significant that  while clause  (b) of  Sec. 82  obliges the petitioner to  join as  a respondent  any candidate  against whom allegations  of any  corrupt practice  are made  in the petition, it  does not  oblige the  petitioner to  join as a respondent any  other person against whom allegations of any corrupt practice  are made.  It is  equally significant that while any  candidate not  already a respondent may seek and, if he  so seeks,  is entitled  to be  joined as a respondent under Sec.  86 (4),  any other  person  cannot,  under  that provision  seek   to  be   joined  as  respondent,  even  if allegations of any corrupt practice are made against him. It is clear  that the  contest  of  the  election  petition  is designed to  be confined  to the candidates at the election. All others  are excluded.  The ring  is closed to all except the petitioner  and the  candidates at the election. If such is the  design of the statute, how can the notion of ’proper parties’ enter  the picture  at all  ?  We  think  that  the concept of  ’proper parties’  is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.      It is  said, the  Civil Procedure  Code applies  to the trial of  election petitions  and so  proper  parties  whose presence may  be necessary  in order  to  enable  the  Court ’effectually and  completely to  adjudicate upon  and settle all questions  involved’ may be joined as respondents to the petitions. The  questions is not whether the Civil Procedure Code applies  because it  undoubtedly does, but only ’as far as  may   be’  and   subject  to   the  provisions   of  the Representation of  the People  Act, 1951  and the rules made thereunder. Sec.  87 (1)  expressly says so. The question is whether the  provisions of  the Civil  Procedure Code can be invoked to  permit that  which  the  Representation  of  the People Act  does not.  Quite obviously the provisions of the Code cannot  be so  invoked. In  Mohan Raj v. Surendra Kumar Taparia &  Ors.,(1) this Court held that the undoubted power of  the  Court  (i.e.  the  Election  Court)  to  permit  an amendment of  the petition  cannot be  used  to  strike  out allegations against  a candidate  not joined as a respondent so as  to save the election petition from dismissal for non- joinder of necessary 329 parties. It  was said, "The Court can order an amendment and even strike  out a party who is not necessary. But where the Act makes  a person  a necessary party and provides that the petition shall  be dismissed  if such a party is not joined, the power  of amendment  or to  strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of  the Representation  of the People Act and any rules made  thereunder. When  the Act enjoins the penalty of dismissal of  the petition  for non-joinder  of a  party the provisions of  the Civil  Procedure Code cannot be used as a curative  means   to  save   the  petition."  Again,  in  K. Venkateswara Rao  &  Anr.  v.  Bekkam  Narasimha  Reddi  and Ors.,(1) it was observed:           "With regard  to the  addition of parties which is      possible in  the case of a suit under the provisions of      O.l r.  10 subject  to the added party right to contend      that the  suit as  against him was barred by limitation      when he  was added,  no addition of parties is possible      in the  case of  an election  petition except under the      provisions of Sub-sec. (4) of Section 86".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

    The matter  may be  looked at  from another  angle. The Parliament has expressly provided that an opportunity should be given  to a  person who  is not a candidate to show cause against being  ’named’ as  one guilty of a corrupt practice. Parliament however, has not thought fit to expressly provide for his  being joined  as a  party to  the election petition either by  the election-petitioner or at the instance of the very person  against  whom  the  allegations  of  a  corrupt practice are  made. The right given to the latter is limited to show  cause against  ’named’ and  that right opens up for exercise when,  at the  end of  the trial  of  the  election petition notice  is given to him to show cause why he should not be  ’named’. The  right does not extend to participation at all  stages and  in all  matters, a  right which he would have if  he is  joined  as  a  party  at  the  commencement. Conversely the  election petitioner  cannot by  joining as a respondent a  person who  is not a candidate at the election subject him  to a  prolonged trial  of an  election petition with all  its intricacies  and ramifications.  One may  well imagine how  mischievous minded  persons may  harass  public personages like the Prime Minister of 330 the country,  the Chief  Minister of  a State or a political leader of  a national dimension by impleading him as a party to election  petitions, all the country over. All that would be necessary  is a  seemingly plausible allegation, casually or spitefully  made, with but a facade of truth. Everyone is familiar with  such allegations.  To permit  such  a  public personage to be impleaded as a party to an election petition on the  basis of a mere allegation, without even prime facie proof, an  allegation which  may ultimately  be found  to be unfounded, can cause needless vexation to such personage and prevent him  from the  effective  discharge  of  his  public duties. It  would be  against the  public interest to do so. The ultimate  award of  costs would  be no  panacea in  such cases, since the public mischief cannot be repaired. That is why public  Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the  People Act  which does  not permit  the joining,  as parties, of  persons other  than those mentioned in Sections 82 and  86 (4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the  trial of  an election  petition, after  evidence has been  given,  the  Court  finds  that  there  is  sufficient material to  hold a person guilty of a corrupt practice, the Court may  then issue  a notice  to him  to show cause under Sec. 99  and proceed  with further  action. In  our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue  a notice to a person not a party to the proceeding to show  cause why  he should  not be  ’named’ is sufficient clarification of the legislative intent that such person may not be  permitted to  be joined  as a  party to the election petition.      There is  yet another  view-point. When  in an election petition in addition to the declaration that the election of the returned candate is void a further declaration is sought that any  candidate other  than the  returned candidate  has been duly elected, sec. 97 enables the returned candidate or any other  party to  ’recriminate’ i.e.  to give evidence to prove that  the election  of such  candidate would have been void if  he had been a returned candidate and a petition had been presented  to question his election. If a person who is not a  candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

by virtue  of his  position as  a party,  he would  also  be entitled to  ’recriminate’ under  sec.  97.  Surely  such  a construction of  the statute  would throw  the doors  of  an election petition wide open and convert the petition into 331 a ’free  for all’ fight. A necessary consequence would be an unending,  disorderly  election  dispute  with  no  hope  of achieving the  goal contemplated  by Sec.  86(6) of  the Act that the  trial of the election petition should be concluded in six  months. It is just as well to remember that ’corrupt practice’ as  at present  defined by  Sec. 123 of the Act is not confined  to the  giving of  a bribe  but extends to the taking of  a bribe too and, therefore, the number of persons who may  be alleged  to be  guilty of a corrupt practice may indeed be  very large, with the consequence that all of them may possibly be joined as respondents.      In view  of the  foregoing discussion  we  are  of  the opinion that  no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the  Act. It follows that a person who is not a candidate may not  be joined as a respondent to the election petition. The appeal is therefore, allowed with costs and the names of the appellants  and the seventh respondent in the appeal are directed to  be struck  out from the array of parties in the election petition.  We may  mention that  in arriving at our conclusion we  have also  considered the following decisions cited before  us: S.B.  Adityen &  Anr. v.  S. Kandaswami  & Ors.,(1) Dwijendra  Lal Sen  Gupta v.  Herekrishna Koner,(2) H.R. Gokhale  v. Bharucha  Noshir C. & Ors.,(3) and S. Iqbal Singh v. S. Gurdas Singh Badal & Ors.(4) N.V.K,                                        Appeal allowed 332