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PETITIONER: RAMA KANT PANDEY

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT05/02/1993

BENCH: SHARMA, L.M. (CJ) BENCH: SHARMA, L.M. (CJ) MOHAN, S. (J) BHARUCHA S.P. (J)

CITATION:  1993 AIR 1766            1993 SCR  (1) 786  1993 SCC  (2) 438        JT 1993 (1)   440  1993 SCALE  (1)434

ACT: Constitution of India, 1950: Articles   14,  19  and  21-The  Representation  of   People (Amendment)  ordinance Nos.  1 and 2 of  1992-Whether  ultra vires. The  Representation of People (Amendment) Ordinances  No.  1 and 2 of 1992-Whether ultra vires the Constitution of India, 1950. Representation of the People Act, 1951: Sections  52 and 30-Countermanding of  elections-Confinement of cases where candidate of recognised political party dies- Reduction  of period from 20 days to 14 days for  completion of election-Whether valid and proper.

HEADNOTE: The petitioner In his Writ Petition Under Article 32 of  the Constitution   of  India,  challenged   the   constitutional validity  of  the Representation of the  People  (Amendment) Ordinance,   1992  (Ordinance  No.  1  of  1992),  and   the Representation  of the People (Second Amendment)  Ordinance, 1992 (Ordinance No.2 of 1992) on the grounds of violation of Articles 14, 19 and 21 of the Constitution of India. The  provisions of Section 52 of the Representation  of  the People Act, 1951 as they stood before amendment provided for countermanding the election In either of two  contingencies: (1)  If  a  candidate whose nomination was  found  valid  on scrutiny  under  section  36 or who has  not  withdrawn  his candidature under section 37 died and a report of his  death was   received  before  the  publication  of  the  list   of contesting candidates under section 38, (II) If a contesting candidate died and a report of his death was received before the  commencement of the poll.  By Ordinance No. 1 of  1992, the  area  attracting the provisions  of  countermanding  in section   52  had  been  narrowed  down  by  confining   the provisions  only  to  such  cases where  a  candidate  of  a recognized political party dies. 787 Section  30 of the Representation of People Act, 1951  dealt with  appointment of dates for nomination, scrutiny and  the holding of poll, and in clause (d) it was provided that  the

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date  of  poll shall not be earlier than the  twentieth  day after  the  last date for the  withdrawal  of  candidatures. With  a  view  of  expedite the  whole  process,  the  words ’twentieth   day’  have  been  substituted  by   the   words ’fourteenth  day’ in clause (d) of Section 30 by the  Second Ordinary viz.  Ordinance No. 2 of 1992. On  behalf  of  the petitioner it  was  contended  that  the distinction  made  by  the  impugned  amendment  between   a candidate  set  up by a recognised political party  and  any other candidate is artificial, inconsistent with the  spirit of  the  election  law and  discriminatory,  that  the  Con- stitution  does  not  confer  on a candidate  set  up  by  a registered political party any special right, and treats all candidates similarly, and does not any categorisation,  that the  difference being introduced by the  impugned  amendment was contrary to the scheme of the Constitution and violative of  the  equality  clause in Article 14, and  that  it  also infringed the guarantee under Article 19(1) (a).  In respect of the Second Ordinance the objection was that the period of 14 days substituted by the amendment was too short, and  the reduction  from  the  period of 20 days  was  arbitrary  and prejudicial  to the larger interest for which elections  are held. The  Petition was contested on behalf of Union of  India  by stating  that  on  account  of  increase  in  terrorism  and physical  violence in several parts of the Country  combined with  the phenomenal increase in the number  of  independent candidates, the danger of disruption of the election process had been fast growing and the problem was, therefore,  taken up, examined and it was considered that the amendments  were essential  to curb the danger of disruption of the  election process. Dismissing the Writ Petition, this Court, HELD  : 1. The right to vote or to stand as a candidate  for election is neither a fundamental right nor a civil right In England  also it has never been recognised as a  common  law right [791D] Jyoti Basu & Ors. v. Debi Ghosal & Ors, A.I.R. 1982 S.C. 983 and 986, referred to. 2.  The Cabinet system of Government has been  envisaged  by our 788 Constitution,  and the same is on the British  pattern.   In England,  where democracy has prevailed for longer  than  in any  other  country in recent times, the Cabinet  system  of Government  has been found to be most effective.   In  other democratic countries also the party system has been  adopted with success. [792C-D] Shamser  Singh v. State of Punjab, [1975] 1 SCR 814 at  827, referred to. 3.For  a  strong  vibrant democratic  Government,  it  is necessary  to  have a parliamentary majority as  well  as  a parliamentary minority, so that the different points of view on  controversial issues are brought out and debated on  ’he floor  of the Parliament.  This can be best achieved by  the party  system,  so that the problems of the  nation  may  be discussed, considered and resolved in a constructive spirit. To  abolish or ignore the party system would be to permit  a chorus   of  discordant  notes  to  replace   an   organised discussion. [792E] Sir  Ivor  Jennings   ’Cabinet  Government  2nd  Edn.  p.16, referred to. 4.Our  Constitution has dearly recognised the  importance of  the  party system, which was further emphasized  by  the addition  of  the 10th Schedule to it The  Election  Symbols

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(Reservation  and  Allotment) Order is also a step  in  that very direction. [792F] 5.That candidates set up by political parties  constitute a  class separate from other candidates has been  recognised in  numerous cases by this Court which has  also  emphasized the vital role of political parties in a parliamentary  form of democracy and expressed anxiety about the growing  number of independent candidates. [792H, 793C] Dr.  P.N. Thampy Terah v. Union of India [1985] Suppl.   SCC 189  and D.M.L. Agarwal v. Rajiv Gandhi, [1987] Suppl.   SCC 93, referred to. 6.The Representation of the People (Amendment) Ordinance, 1992 and theRepresentation   of   the   People    (Second Amendment)  Ordinance,  1992  are  constitutionally   valid. [789C]

JUDGMENT: CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 47 of 1992. (Under Article 32 of the Constitution of India). 789       P.L Singal and NA.  Siddiqui for the Petitioner. D.N.   Dwivedi,  Additional  Solicitor  General   and   Mrs. Niranjana Singh for the Respondent.          The Judgment of the Court was delivered by SHARMA  CJ. By the present application under Article  32  of the Constantine of India, the petitioner has challenged  the constitutional validity of the Representation of the  People (Amendment) Ordinance, 1992 (Ordinance No.1 of 1992) and the Representation  of the people (Second Amendment)  Ordinance, 1992  (Ordinance No.2 of 1992), on the grounds of  violation of Articles 14, 19 and 21.  By the first Ordinance,  section 52  of the Representation of the People Act, 1951 (the  Act) providing   for   countermanding   elections   in    certain circumstances has been amended.  By the second Ordinance the period of 20 days in section 30 of the Act has been  reduced to 14 days.  Later, when the Parliament met, the  amendments were incorporated by an amending Act. 2.The  provisions  of section 52, as they stood  before  the amendment,  provided  for  countermanding  the  election  in either  of  2  contingencies  (i)  if  a  candidate  whose nomination  was found valid on scrutiny under section 36  or who has not withdrawn his candidature under section 37  died and   a  report  of  his  death  was  received  before   the publication  of  the  fist of  contesting  candidates  under section 38, (ii) if a contesting candidate died and a report of  his  death was received before the commencement  of  the poll.  On countermanding the Returning Officer will have  to report  the  fact  to  the  Election  Commission;  and   all proceedings  with reference to the election will have to  be commenced de novo in all respects as if for a new  election. By  the first Ordinance, the area attracting the  provisions of  countermanding has been narrowed down by  confining  the provisions only to such cases where a candidate of a retired political party dies. 3.Section 30 deals with appointment of dates for nomination, scrutiny  and  the holding of poll and in clause (d)  it  is provided that the date of poll shall not be earlier than the twentieth  day  after the last date for  the  withdrawal  of candidatures.  With a view to expedite the whole process the words  ’twentieth  day’ have been substituted by  the  words "fourteenth  day"  in  the  said  clause  by  the   impugned Ordinace.

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790 4.   Learned  counsel  for the  petitioner  has  strenuously contended   that  the  distinction  made  by  the   impugned amendment  between  a  candidate  set  up  by  a  recognised political  party  and  any  other  candidate  is  artificial inconsistent  with  the  spirit  of  the  election  law  and discriminatory.   The  Constitution  does not  confer  on  a candidate set up by a registered political party any special right  and  treats all candidates similarly.   It  does  not recognize any categorisation.  It is, therefore, argued that the  difference  which is being introduced by  the  impugned amendment is contrary to the scheme of the Constitution  and violative of the equality clause in Article 14. According to the  learned counsel this will also infringe  the  guarantee under  Article 19(1)(a) in respect of freedom of speech  and expression. 5.Elaborating  his argument, the learned  counsel  contended that  the right to choose its representative belongs to  the voters of a particular constituency, and this should not  be whittled  down  by  amendments  which  have  a  tendency  to undermine this element.  Lack of wisdom in giving importance to  recognized  political parties was emphasised  by  saying that  such  parties  almost always impose  their  choice  of candidates  in  their own interest and at the  cost  of  the welfare   of  the  constituencies.   By   introducing   this imbalance in the Act, it is stated, the republican character of  the Constitution is jeopardised.  The sum and  substance of  the  argument  on behalf of the petitioner  is  that  no distinction  can be made between one candidate  and  another purely depending on recognition as a political party. 6.So far the second Ordinance is concerned, the objection is that the period of 14 days, substituted by the amendment, is too  short and the reduction from the period of 20  days  is arbitrary  and prejudicial to the larger interest for  which elections are held. 7.In  reply, Mr. Altaf Ahmad, Additional Solicitor  General, appearing  on  behalf  of the Union of  India  has  strongly relied  upon  the statements made in the  counter  affidavit filed on behalf of the respondent stating that on account of increase in terrorism and physical violence in several parts of the country combined with the phenomenal increase in  the number  of independent candidates, the danger of  disruption of  the  election  process has been  fast  growing  and  the problem was, therefore, taken up for serious  consideration. The  issue was examined by the Electoral  Reforms  Committee set  up in 1990 under the Chairmanship of the then  Minister of law and 791 Justice,  late Dinesh Goswami.  After studying  the  problem deeply  and considering various points of view presented  in this  regard  the.  Committee made its  recommendation  and, accordingly,  the impugned amendment was  made.   Explaining the  urgency  of introducing the amendment by  an  Ordinance (when  Parliament was not in session) the  counter-affidavit states  that  it had then been decided to hold  the  General Elections to the House of People from the State of Punjab as also the election to the State Legislature of that State and having  regard to the law and order situation prevailing  in the State, it was considered essential to curb the danger of disruption  of the election process by amending  section  52 immediately.  With the same object in view, the period of 20 days mentioned in section 30 was substituted by 14 days. 8.Before  proceeding to examine the merits of  the  argument addressed  on behalf of the petitioner it will be useful  to note  that the right to vote or to stand as a candidate  for

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election  is  neither a fundamental nor a civil  right.   In England  also it has never been recognised as a  common  law right.   In  this connection, we may usefully refer  to  the following observations in,Jyoti Basu & Others v. Debi Ghosal & Others, A.I.R.1982 S.C.983 and 986 which reads as under :               "The  nature of the right to elect, the  right               to  be  elected and the right  to  dispute  an               election and the scheme of the  constitutional               and statutory provisions in relation to  these               rights  have  been explained by the  Court  in               N.P. Ponnuswani v. Retuming Officer,  Namakkal               Constituency, [1952] SCR 218 : AIR 1952 SC  64               and  Jagan Nath v. Jaswant Singh, AIR 1954  SC               210.  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." 792 The  objection raised by the petitioner, therefore, must  be examined in this background. 9.The  challenge of the petitioner is directed  against  the differential treatment which the election law in India gives to candidates set up by political parties.  The main  thrust of  the  argument of the learned counsel is that  the  party system  and the recognition of political parties  is  itself detrimental  to the cause of real democracy.  In any  event, no  additional  advantage  ought to  have  been  allowed  to candidates  set  up by political parties.  This  stand  runs counter to the constitutional scheme adopted by the  nation. It  has firmly been established that the Cabinet  system  of Government  has been envisaged by our Constitution and  that the  same is on the British pattern. (See Shamsher Singh  v. State of Punjab, [1975] 1 SCR 814 at 827).  In England where democracy has prevailed for longer than in any other country in  recent times, the Cabinet system of Government has  been found  to  be  most  effective.   In  the  other  democratic countries  also  the  party system  has  been  adopted  with success.   It  has been realised that for a  strong  vibrant democratic   Government,   it  is  necessary   to   have   a parliamentary majority as well as a parliamentary  minority, so that the different points of view on controversial issues are brought out and debated on the floor of the  Parliament. This  can be best achieved by the party system, so that  the problems  of  the nation may be  discussed,  considered  and resolved in a constructive spirit.  To abolish or ignore the party system would be to permit a chorus of discordant notes to  replace an organised discussion.  In his  book  "Cabinet Government"  (2nd  Edition page 16) Sir Ivory  Jennings  has very  rightly said."Party warfare is thus essential  to  the working  of the democratic system".  It is, therefore,  idle to suggest that for establishing a true democratic  society, the  party system should be ignored.  Our  Constitution  has clearly recognized the importance of this system, which  was further  emphasized by the addition of the 10th Schedule  to it.  The Election Symbols (Reservation and Allotment)  Order is also a step in that very direction.

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10.  There  is  also no merit whatsoever in  the  contention that  candidates  set  up by political  parties  should  not receive any special treatment.  The fact that candidates set up by political parties constitute a class separate from the other  candidates  has  been recognized  by  this  Court  in numerous cases.  In paragraph 14 of the judgment in the case of  Dr.  P.N. Thampy Terah v. Union of India  [1985]  Suppl. SCC 189, the Constitution 793 Bench observed thus :-               "It  is  the political parties  which  sponsor               candidates,  that are in a position  to  incur               large  election expenses which often run  into               astronomical figures.  We do not consider that               preferring  political  parties  for  exclusion               from the sweep of monetary limits on  election               expenses,  is so unreasonable or arbitrary  as               to  justify the preference being  struck  down               upon that gournd." In  D.M.L. Agarwal v. Rajiv Gandhi, [1987] Suppl.  SCC 93  a Division Bench of this Court took note of and emphasized the vital  role of political parties in a parliamentary form  of democracy and anxiety was expressed about the growing number of independent candidates. 11.  For  the  reasons indicated above, we do not  find  any substance  in  the argument of the learned counsel  for  the petitioner  challenging the constitutional validity  of  the impugned amendment of section 52.  The argument against  the reduction of the period of 20 days to 14 days in section  30 is equally without any merit.  The learned counsel could not suggest  any good reason for holding that the period  of  14 days would be inadequate or inappropriate, especially in the changed  circumstances which are prevailing in the  country. Consequently,  this  writ petition is dismissed  with  costs assessed  at  Rs. 2,500 payable to the respondent  Union  of India. N.V.K.                                Petition dismissed. 794