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PETITIONER: NARAYAN BHASKAR KHARE

       Vs.

RESPONDENT: THE ELECTION COMMISSION OF INDIA(and connected petition)

DATE OF JUDGMENT: 03/05/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER DAS, S.K. KAPUR, J.L. GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1957 AIR  694            1957 SCR 1081

ACT: President, Election of-Doubts and Disputes relating to  such election-jurisdiction  and Power of Supreme Court, when  can be  exercised-’Election’ Meaning of-Constitution  of  India, Arts. 71, 62-The Presidential and Vice-Presidential Election Act, 1952 (XXXI Of 1952), s. 14.

HEADNOTE: The petitioners entertained grave doubts as to the propriety of  holding  the Presidential election  before  the  general elections had been completed throughout the entire territory of India and, by applications filed under Art. 71(1) of  the Constitution as citizens of India, invoked the  jurisdiction and  power of the Supreme Court thereunder to  inquire  into such doubts and sought for an order restraining the Election Commission  from  taking  the poll in  connection  with  the election  of the President, fixed for May 6, 1957, till  the general elections in the Union territory of Himachal Pradesh and in two Lok Sabha Constituencies of the State of  Punjab, which were still to be held, had been completed.  The expiry of the term of office of the then President which caused the Presidential election was to come about on the mid-night  of May 12, 1957.  One of the petitioners alleged that he was  a candidate  for  the  Presidential  election  and  the   time intervening between the date when he received his nomination paper and the date fixed for the filing of it was too  short to  enable  him to file it within time and the case  of  the other  was that he was a prospective candidate for  election to  the  Lok Sabha from one of  the  Punjab  Constituencies, where  election was yet to be held, and would  be  prevented from  exercising his right to vote for the election  of  the President. Held, that the present petitions were premature and must  be dismissed. ^ The jurisdiction and power conferred on the Supreme Court by Art.  71(1) of the Constitution to inquire into  and  decide

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doubts  and disputes arising out of and in  connection  with the election of the President can be exercised only after  a particular  candidate  has been declared elected and  on  an election petition filed under S. 14 of the Presidential  and Vice-Presidential Election Act of 1952. The  word ’election’ in Art. 71 of the Constitution is  used in the wider sense to denote the entire process of  election culminating 139 1082 in  a  candidate  being  declared  elected  and  doubts  and disputes arising out of and in connection with such election must  include  all  doubts  and  disputes  relating  to  any particular stage of it. N.   P.   Ponnuswamy   v.   Returning   Officer,    Namakkal Constituency,  (1952) S.C.R. 218, referred to. It   is  a well recognised principle of the law of  election that  an  election  cannot  be held  up  to  facilitate  the ventilation  of individual grievances in derogation  of  the interest  of  the  people  in general and  Art.  62  Of  the Constitution, which requires that the election of  President must  be completed within the time fixed by it and has  been conceived in such interest, is mandatory in character,

JUDGMENT: ORIGINAL JURISDICTION: Petitions Nos. 63 and 64 of 1957. Petitions  under Article 71(1) of the Constitution of  India for clarification of doubts in connection with the  election of the President. R.   V. S. Mani and I. R. V. Sastri, for the  petitioner  in Petition No. 63 of 1957. R.   Patnaik, for the petitioner in Petition No. 64 of 1957. M.   C.  Setalvad Attorney-General for India, G.  N.  Joshi, Porus  A.  Mehta  and  R. H.  Dhebar,  for  the  respondents (Caveators) in both the petitions. 1957.  May 3. The Judgment of the Court was delivered by DAS C. J.-The petitioners in the above petitions have  moved this Court to exercise the jurisdiction and power vested  in it by and under Art. 71(1) of the Constitution of India  and to  inquire  into and decide what has been  described  as  a "grave  doubt"  in  connection  with  the  election  of  the President of India and to direct the Election Commission not to  proceed  with the polling in connection  with  the  said election  which has been fixed for May 6, 1957, but to  hold the same after duly completing all the elections to the  Lok Sabha  and the Legislatures in all the States of the  Indian Union  including  the  Union  territory.   The  first   main petition was presented on April 26, 1957, and the second  on April  29, 1957.  Along with each of the said petitions  has been filed a Civil Miscellaneous Petition asking for a  stay of the polling for the Presidential election fixed 1083 for  May 6, 1957.  In the first main petition the  Returning Officer  has  not  been  made a party,  but  in  the  second petition he has been impleaded as a respondent.  The learned Attorney-General  has  appeared on behalf  of  the  Election Commission  and has waived the service of notice.   We  can, therefore, dispose of all the petitions before us. There  is  no  dispute as to the material  facts  which  may shortly be stated as follows: After  the  general elections in all the  States  and  Union territories  of  India,  except in the  Union  territory  of Himachal Pradesh, which is to return four members to the Lok

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Sabha and in two constituencies in the State of Punjab,  the old Lok Sabha was dissolved on April 4, 1957 and the New Lok Sabha  was constituted on April 5, 1957, under s. 73 of  the Representation  of  the  People Act  (XLIII  of  1951).   As required  by s. 4 of the Presidential and  Vice-Presidential Election  Act, 1952 (XXXI of 1952), the Election  Commission issued  a  notification in the official  Gazette  appointing April  16, 1957, as the last date for  making  nominations,- April  17,  1957,  as  the date  for  the  scrutiny  of  the nominations,  April  20,  1957, as the  last  date  for  the withdrawal of candidatures, May 6, 1957, as the polling date and May 10, 1957, as the date for the counting of the  votes and  the declaration of the result.  The term of  office  of the  present President is due to expire on the mid-night  of May 12, 1957.  The reason for fixing the above time schedule obviously  was  that  the Presidential  election  should  be completed before the term of office of the present President expired. After  the notification constituting the new Lok  Sabha  was published  in the Press on April 7, 1957, the petitioner  in the  first petition applied to the Election  Commission  for the  supply  of the nomination papers, which  he  eventually received at Nagpur in the afternoon of April 10, 1957.  This left a period of five days for the filing of the  nomination paper  before  the  Returning Officer  at  New  Delhi.   The petitioner  submits that the time was too short and  he  was prevented  from filing his nomination paper due to  want  of time.  He 1084 has  filed  the  petition as a citizen of India  and  as  an "intending candidate" for the Presidential election. The  petitioner  in the second petition is a member  of  the Hindu  Mahasabha and is contenting the election to  the  Lok Sabha as an independent candidate from Kangra  Parliamentary constituency   in  the  State  of  Punjab.   He  filed   his nomination  paper  on January 28, 1957,  as  originally  the polling  was scheduled to commence in that  constituency  on February  24,  1957.  The polling, however, has  since  been postponed  and  fixed for June 2, 1957.  He  has  filed  the petition  as a citizen of India and as a prospective  member of Lok Sabha and contends that if the Presidential  election is held on May 6, 1957, he will be deprived of his right  to vote for the election of the President of the Union.  He has also complained of discrimination offending against Art.  14 of the Constitution. Under Art. 56 of the Constitution the President holds office for  a term of five years from the date on which  he  enters upon  his office.  The present incumbent of the high  office entered  upon  his office on May 12, 1952, and,  as  already stated,  his term is due to expire on the mid-night  of  May 12,  1957.   Article 62(1) peremptorily  requires  that  the election to fill the vacancy caused by the expiration of the term  of office of the President shall be  completed  before the expiration of the term.  It is necessary to bear in mind this  clear  mandatory provision of the  Constitution.   For ascertaining  how such election of President is to be  held, we have to go back to Art. 54, which runs thus: "  54.  The President shall be elected by the members of  an electoral college consisting of- (a)  the elected members of both Houses of Parliament ; and (b)  the  elected members of the Legislative  Assemblies  of the States." On  one  side it is said that the electoral  college  is  to consist of those members falling under clauses (a) and  (b), who  are  elected at the crucial date, that is to  say,  the

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date  when  the election is to take place.  Suppose,  it  is said, that the term of the President’s office expires during the currency of the life of Parliament; as it 1085 may well do in cases contemplated by Art. 62(2) and  suppose there  are vacancies in Parliament or in the Legislature  of one  or  more States, surely the election of  the  President required  by Art. 62(1) to be held before the expiry of  the term  of the outgoing President cannot be held up until  the vacancies are filled up.’ On the other hand it is  contended that  the  electoral college must be constituted  after  the elections in all States and Union territories are  completed and should consist of all the elected members falling within both  the categories.  Inasmuch as elections have not  taken place  at all in Himachal Pradesh and in two  constituencies of  the  State of Punjab, the electoral  college  cannot  be constituted until after those members are also elected.   It is pointed out that though on the present occasion only four members  of  Himachal Pradesh and only two  members  in  the State of Punjab have not been elected, nevertheless, if  the objection of the petitioners is not now heeded any party  in power  may  in future arrange for the election  of  its  own nominee as President by postponing the elections in  several States, where it may not expect to get a majority of  seats. It  is said that on March 28, 1957 some members of the  then Lok  Sabha  had  raised  a question as  to  the  danger  and impropriety of holding the election of the President  before the completion of the elections throughout the territory  of India.  Both the petitioners share the same view and contend that  a  " grave doubt " has arisen in connection  with  the election of the President and that such a doubt must,  under Art.  71, be inquired into and decided by this  Court.   The extreme contention put forward on behalf of the  petitioners is that it does not matter whether the doubt is well founded or not or whether it is good, bad or indifferent; this Court is  bound to inquire into and decide the same as soon  as  a doubt  arises and a citizen brings it before this Court  for resolution  thereof. For the purpose of this case it is  not necessary for us to express any opinion on the merits of the respective  contentions  for  these petitions  may  well  be disposed of on a narrower preliminary ground. 1086 Article 71 (1) Undoubtedly confers jurisdiction and power on this  Court  to  inquire into and decide "  all  doubts  and disputes  arising out of or in connection with the  election of President or Vice-President " and this Court will have to inquire  into  and  decide the same.  But  the  question  is whether there is anything in the Constitution indicating the time  at  which  and the manner in  which  such  doubts  and disputes  have to be inquired into and decided.  Under  Art. 324 the superintendence, direction and control of the prepa- ration  of the electoral rolls for, and the conduct of,  all election,%  to  Parliament and to the Legislature  of  every State and of elections to the office of President and  Vice- President  held  under  this  Constitution,  including   the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with  elections to Parliament and the Legislatures of States shall be vested in  the  Election  Commission.   It  will  be  noticed  that identical  words  are used, namely, "  doubts  and  disputes arising  out of or in connection with elections " which  are also  to be found in Art. 71 (1).  By Art.  327,  Parliament was authorised to make provision with respect to all matters "  relating  to  or  in  connection  with  elections  "   to Parliament  or to the Legislatures of the States.  Art.  329

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provides,   amongst  other  things,   that   notwithstanding anything in this Constitution no election to either House of Parliament  or either House of 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  the  proper legislature.   In exercise of powers thus conferred  on  it, Parliament  enacted  the Representation of the  People  Act, 1951, providing how elections are to be held and how and  on what  grounds such elections may be called in question.   It also set up a special forum called Election Tribunal for the decision  of  "  doubts and disputes arising  out  of  or in connection  with  such  elections." In  N.P.  Ponnuswami  v. Returning  Officer, Namakkal Constituency (1) the  Returning Officer for that constituency had rejected, the (1)  (1952) S.C.R. 218. 1087 nomination paper of the appellant.  Thereupon the  appellant applied  to the High Court of Madras under Art. 226  of  the Constitution for a writ of certiorari to quash the order  of the Returning Officer rejecting his nomination paper and  to direct the Returning Officer to include his name in the list of  valid  nominations to be published.  The High  Court  of Madras  dismissed the petition and the appellant brought  an appeal  to this Court.  The Full Court held that in view  of the provisions of Art. 329 (b) of the Constitution and s. 80 of  the  Representation of the People Act,  1951,  the  High Court had no jurisdiction to interfere with the order of the Returning  Officer.   The  main controversy  in  the  appeal centered  round  the words "no election shall be  called  in question except by an election petition " occurring in  Art. 329  (b).  The most important question for determination  by this  Court  was  the  meaning to be given  to  the  word  " election " in Art. 329 (b).  This Court said at page 226: "That word has by long usage in connection with the  process of   selection  of  proper  representatives  in   democratic institutions, acquired both a wide and a narrow meaning.  In the narrow sense, it is used to mean the final selection  of a  candidate which may embrace the result of the  poll  when there  is polling or a particular candidate  being  returned unopposed  when  there is no poll.  In the wide  sense,  the word is used to connote the entire process culminating in  a candidate being declared elected." After  referring to the cases of Srinivasalu  v.  Kuppuswami (1)  and Sat Narain v. Hanuman Prasad (2 ) and a passage  in Halsbury’s  Laws  of England, 2nd edition, Volume  12,  page 237,  this  Court took the view that the  word  "election  " could  be  and had been properly used with  respect  to  the entire  process  which  consisted  of  several  stages   and embraced  many steps some of which might have  an  important bearing  on the result of the process and,  therefore,  held that  in  view  of the provisions of Art.  329  (b)  of  the Constitution  and s. 80 of the Representation of the  People Act,  1951, the High Court had no jurisdiction to  interfere with the (1) A.I.R. (1928) Mad. 253, 255. (2) A.I.R. (1945) Lah. 85. 1088 order of the Returning Officer under Art. 226.  The only way such  an order could be called in question was as laid  down in  Art.  329  (b)  of the Constitution and  s.  80  of  the Representation  of the People Act, 1951, and this  could  be done  only  by  an election petition  presented  before  the Election  Tribunal  after  the entire  process  of  election culminating  in a candidate being declared elected had  been

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gone  through.   On such election petition being  filed  the Election  Tribunal would be properly bound to  inquire  into and  decide  "all doubts and disputes arising out of  or  in connection with the election " irrespective of the stage  in the  entire  election  process to which  the  "  doubts  and disputes relate".  We now approach the construction of  Art. 71 in the light of the decision of this Court. As  already  indicated Art. 71(1) confers  jurisdiction  and power on this Court to inquire into and decide id all doubts and  disputes  arising  out of or  in  connection  with  the election  of a President or Vice-President".   The  question is:  Is  there in this Article or in any other part  of  the Constitution or anywhere else any indication as to the  time when  such inquiry is to be held ? In the first place,  Art. 71  postulates  an  " election of  the  President  or  Vice- President  "  and  provides  for  inquiry  into  doubts  and disputes  arising  out  of or in  connection  with  such  an election.   What  is the meaning to be given to the  word  " election " as used in this Article?  If we give to the  word ,election" occurring in Art. 71(1) the same wide meaning  as comprising  the  entire election process  culminating  in  a candidate  being declared elected, then clearly the  inquiry is  to be made after such completed election, i.e., after  a candidate  is declared to be elected as President  or  Vice- President  as  the case may be.  We see no reason  why  this accepted  meaning should not be given to the critical  word. In the second place, under cl. 3 of Art. 71, subject to  the provisions  of  this  Constitution, Parliament  may  by  law regulate  any  matter " relating to or  connected  with  the election " of a President or Vice-President.  The words here also  are similar to those used in Art. 327 and are  equally wide enough to cover matters relating to or 1089 connected with any stage of the entire election process.  In exercise of powers conferred on it by Art. 71(3), Parliament has enacted the Presidential and Vice-Presidential  Election Act,  1952  (XXXI  of  1952)  to  regulate  certain  matters relating  to  or connected with elections to the  office  of President and Vice-President of India.  A glance through the provisions  of  this Act will indicate that in the  view  of Parliament the time for the exercise of jurisdiction by this Court to inquire into and decide doubts and disputes arising out  of or in connection with the Presidential  election  is after the entire election process is completed.  Under s. 14 of   this   Act,  which  corresponds  to  s.   80   of   the Representation of the People Act, 1951, no election, meaning the  election of the President or Vice-President,  shall  be called in question except by an election petition  presented to this Court in accordance with the provisions of Part  III of  that Act and of the rules made by this Court under  Art. 145.  Section 18, which lays down the grounds for  declaring the  election  of a returned candidate to be void,  runs  as follows: 18.  Grounds  for  declaring  the  election  of  a  returned candidate to be void:-If the Supreme Court is of opinion- (a)  that  the offence of bribery or undue influence at  the election has been committed by the returned candidate or  by any person with the connivance of the returned candidate; or (b)  that  the  result of the election has  been  materially affected- (i)  by  reason  that  the  offence  of  bribery  or   undue influence  at the election has been committed by any  person who  is neither the returned candidate nor a  person  acting with his connivance; or (ii)by the improper reception or refusal of a vote, or

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(iii)by  the  non-compliance  with  the  provisions  of  the Constitution or of this Act or of any rules or, orders  made under this Act; or (c)  that  the nomination of any candidate has been  wrongly rejected or the nomination of the successful candidate or of any other candidate who has 140 1090 not withdrawn his candidature has been wrongly accepted; the Supreme Court shall declare the election of the returned candidate to be void. (2)  For  the  purposes  of this section,  the  offences  of bribery  and  undue influence at an election have  the  same meaning as in Chapter IX-A of the Indian Penal Code (Act XLV of 1860). It is quite clear from the language of the section that  any improper  reception  or  refusal  of a  vote,  or  any  non- compliance with the provisions of the Constitution or of the Act  or  of any rules or orders made under the  Act  or  the improper  acceptance or rejection of a nomination paper  may be  made a ground for challenging the election.  This  means that  all doubts and disputes relating to any stage  of  the entire  election process is to be canvassed by  an  election petition  presented to this Court after the election in  its wide sense is concluded. The  above  stated  interpretation appears to us  to  be  in consonance with the other provisions of the Constitution and with  good sense.  If doubt or dispute arising out of or  in connection  with  the  election  of  a  President  or  Vice- President can be brought before this Court before the  whole election  process is concluded then conceivably  the  entire election  may be held up till after the expiry of  the  five years’  term  which will involve a  no-compliance  with  the mandatory  provisions  of  Art.  62.   The  well  recognised principle  of  election  law, Indian and  English,  is  that elections  should  not  be  held  up  and  that  the  person aggrieved   should  not  be  permitted  to   ventilate   his individual interest in derogation of the general interest of the  people,  which requires that elections should  be  gone through  according to the time schedule.  It is,  therefore, in  consonance both with the provisions of Art. 62 and  with good sense to hold that the word "election" used in Art.  71 means  the  entire  process  of  election.   That  is   what Parliament  understood to be the meaning of Art.,, 71 as  is apparent   from  the  Presidential   and   Vice-Presidential Election Act, 1952.  Again this Court has framed rules under Art. 145 to regulate the 1091 procedure  and a perusal of those rules will  also  indicate that  "  all  doubts  and disputes  arising  out  of  or  in connection  with  the  election  of  a  President  or  Vice- President  "  should be brought before the court  after  the result  of the entire election is declared, that is to  say, after a candidate is declared to be elected to the office of President or Vice-President. It  is pointed out that if the petitioners are compelled  to wait  until after the entire election process  is  concluded and then to file election petitions, they will have to  show that the result of the election has been materially affected as  required  by  s.  18  of  the  Presidential  and   Vice- Presidential Election Act, 1952.  It is contended that there is  no reason why this extra, burden or hardship,  which  is not  in terms imposed by Art. 71, should be placed upon  the petitioners.   It  is  not necessary  for  the  purposes  of disposing  of these petitions to express any opinion  as  to

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the  validity or otherwise of this requirement of s. 18  and we  do not do so. But the plea of alleged  hardship  brought about  by s. 18 cannot alter the true meaning and import  of Art. 71. In our judgment Art. 71 postulates an election  and the  word "election " occurring in Art. 71 means the  entire election  process culminating in a candidate being  declared elected  and  doubts  and  disputes arising  out  of  or  in connection with any of the stages of such completed election have to be inquired into and decided by this Court which, in point  of time, must necessarily be after the completion  of the entire process compendiously called the election. Learned  counsel appearing for the petitioner in the  second petition  raised  an  additional  point  that  the  Election Commission  by  fixing  the election on  May  6,  1957,  has arbitrarily  deprived the members  representing  territorial constituencies  like  Kangra and Himachal Pradesh  of  their right  to exercise and enjoy other privileges of  membership of  Parliament.  This argument was raised half heartedly  at the  fag end of his argument in reply and was not  seriously pressed.   In  any  event  he did  not  advance  any  cogent argument showing how the petitioner had been deprived of the equal  protection of the law.  Elections have to be held  in numerous 1092 constituencies  and  different dates have to  be  fixed  for holding  the  actual elections in  different  constituencies according   to  the  various  exigencies  relating  to   the particular  localities  in  which  the  constituencies   are situate.   No good ground has been established  for  holding that there has been any discrimination such as is prohibited by  Art. 14 of the Constitution.  In so far as  the  alleged discrimination,  if any, in breach of the  equal  protection clause  of the Constitution may be said to be calculated  to raise  any  doubt  in connection with the  election  of  the President  it  will, at best, be a  noncompliance  with  the provisions  of the Constitution which may or may not,  after the  conclusion  of the entire election, be made  a  ground, under  s.  18  of  the  Presidential  and  Vice-Presidential Election Act, 1952, for calling the election in question  as to which we need formulate no final opinion at this stage. We  express  no  opinion  on  the  merits  of  any  of   the controversies  between the parties, but, for  the  foregoing reasons,  we hold that the present petitions  are  premature and  cannot  be entertained at this stage.   We,  therefore, dismiss  the  petitions  Nos.  63 and  64  of  1957.   Civil Miscellaneous  Petitions Nos. 563 and 564 of 1957 will  also stand dismissed.                               Petitions dismissed.