Whether amounts to undue influence.
“+
‘ s
7 CHARAN LAL SAHU & OTHERS . -:° . \ : vy, . - . od GIANI ZAIL SINGH & ANOTHER eo . December 1B, 1983 . : *
Iv. Vy. _ CHANDRAcHUD, CJ PN, BHAGWATI, "AMARENDRA NATH Sen, D.P. MADON AND M.P. THakkar, JJ.]
Constitution of India 1950, Articles 71(1) and 84(a) Sec. 181) af Presidential .
and Vice-Presidential Elections Act 1952— Whether ultra vires Article 71(1).
- Presidential election— Candidate contesting such ‘election Whether to tuke
‘oath prescribed by Article 84(a).
7 aa Presidential and Vice- Presidential Elections Act, 1952 Section 13(a) read with . section 144 (1)—‘Candidate’ at Presidential election—Who is—One ‘dulv nominated’ or. who claims to have been duly ‘nominated’-—-Who has locus standi to challenge election.
“to Section 181) and 19-—Election petition—-Whether could be filed on ground that elected candidate not a ‘suilable person * for holding the office.
"Section 18(2}—Undue influence and bribery at an 1 election— Canvassing for -a candidate— Whether amounts to undue influence.
,
Pleading & ‘Practice : Election Petitions—Pleadings-—Precise specific and unanibiguous—Necessity for.. ‘y indian Penal Code—Section 171 C—Undue influence at elections—Canvassing—
=
‘Words & Phirases—Meaning of: “Connivance” whether means “consent”
For the election to the office of the President of India, the Returning officer aecepted the nomination papers of two candidates only viz. Giani Zail Singh and Shri H'R, Khanna. The‘election was held on July 12,1982, and Giani (Zail Singh was declared as the successful candidate. .
@he petitioners in Election Petition Nos. 2 and 3 of 1982 who had filed their nomination papers, contested the election on various grounds and alleged that Respondent 1. Giani Zail Singh exercised undue influence over the voters
- through his confidants.
le rY
A preliminary objection to the maintainability of these petitions was raised on behalf of Respondent no. | and the Attorney General. It was contended that neither of the two petitioners was a ‘candidate’ within the meaning of section
13(a) of the Presidential and Vice-Presidential Elections Act, 1952 and since * under section -14A,an election petition can be filed only by a persén, whs was a candidate - at the election, the petitioners had no standing to file the petitions. a This Court framed the following preliminary issue : ‘‘Does the petitioner have no locus standj to maintain the petition on the ground that he-was not a ‘candidate’ within the meaning of section 13(a) read with Section 14A of . Presidential! and Vice-Presidential Elections Act 1952?
Election Petition No. 4 of 1982 was filed by 27 Menibers of Parliament challenging the election of Respondent No. 1, Giani Zail Singh as. the President of India. contending that the petitioners jointly sponscred the candidature of Shri H.R. Khanna,'a former Judge and that Giani zail Singh was ‘not a
-guitable’ person” for holding the high office of the President of India, ‘and that : (1) Shri M.H. Beg former Chief Justice and Chairman of the Minorities Commission, was engaged by Respondent | and by the Prime Minister ‘for influencing the votes of the Minority Communities’; (2) that a Cabinet Minister of the Union Government, a ‘supporter -and close associate’. of Respondent 1, exercised undue inffuence over the voters by misusing the Govern- ment machinery andthat a statement was issued by him through the Press -
Information Bureau asking the voters to vote for Respondent 1, (3) that the Prime Minister participated in the election campaign of Respondent 1 and misused the Government machinery for that purpose, (4) that the Prime Mittister made a communal appeal to the Akali Dal that its members should vote for Respondent 1, and (5) that Government helicopters and cars were misused for the purpose of the election of Respondent 1, and that these various acts were committed’by’ supporters of Respondent 1 with his connivance.-
It was contended on behalf of Respondent 1 that even assuming that the aforesaid allegation were true they did not disclose any cause of action for setting aside the election of respondent 1.
This Court framed the following issuey : (1) “‘can the election ofa candidate ta the office of the President of Indid be challanged-on the. ground that he is not a sutitable person for holding that office”, (2) ‘whether the
‘averments if the Election Petition, assuming them to betrué and correct disclose any cause of action for setting aside the election of the returned
- candidate (Respondent 1) on the grounds stated in section 18 (1) (a)¢ of the
Ac a ~)
Dismissing the election Petitions, : -4
HELD : ; ° Election Petitions Nos.2 & 3 of 1982,
1. The petitioners have no locus standi to file the election petitions sincethey were neither duly nominated nor can they claim to have been duly ominat’? ds candidates at the Presidential election. [16 H] -
CHARAN LAL VY. ZAIL SINGH ST
~
. ae .
8 , SUPREME COURT REPORTS [1984] 2S:0.R.
2. Three pre-conditions govern an eléction petition by which a Presicen- ‘tial election is challanged. In the first place sucha petition has to be filed in the Supreme Court. Secondly, the petition must disclose a challange to the election on one or more grounds specified in sub-section (1) of section 18 or section 19. (Thirdly an election petition can -be presented only by a person who was a candidate at the presidential election or by twenty or more electors
. joined together asepetitioners. (4EFD . 3.°The definition of the word ‘candidate’ in section 33(a) of the Act consists of two parts. ‘Candidate’ means a person who has.either been duly Nominated as a candidate‘at a Presidential election or a person who claims to have been duly nominated. Section 5B (1) (a) of the Act provides that on or before the date appointed for making nominations, each candidate shall deliver to the Returning Officer a nomination paper completed in the prescribed form, subscribed by the candidate as assenting to the nomination, and ‘‘in the case of Presidential election, also by, at least ten electors as Proposers and at — feast ten electors as seconders”. [14 G-H; 15 A]
In the instant case, neither “of the two petitioners was duly nominated.
The nomination papers filed by them ‘yere not subscribed by ten electors . | as proposers and ten electors as seconders. It was precisely for this reason
‘that their nomination papers were rejected by the Returning Officer. Since the nomination papers of the two petitioners were ‘not subscribed as required by section 5B (1) (a) of the Act, it follows that they were not duly nominated as “candidates” at the election. U5 A- B] le .
4. The occasion for a person to make a claim that he was duly nominated
_ oan arise only if the nomination paper complies with the statutory requirements which govern the filing of tomination papers and not otherwise. The claim
' that he was ‘duly’ nominated necessarily implies and inyolves the claim that his nomination paper conformed to the requirements of the statute. A contes- tant. whose nomination paper is not subscribed by at least ten electors as.
proposers and ten electors as seconders, as required bys. 58 ( 1) (a) of the Act, cannot therefore claim to have been duly nominated, any niore than a contestant who had not, subscriked his dssent fo his own nomination can. The claim of a contestant that he was duly. nominated must arise out of his compliance with provision of the Act, and not out of the violation of the Act. Other- wise, a persom who had not filed any nomination paper at all but who had only .
informed the "Returning Officer orally that he desired to contest the election could also contend that he ‘‘claims to have been duly nominated asa candi- date (ISH IGA} © Pe rejected on the groundgof non-compliance with the mandatory requirement of s. 58(1)(a) of the Act. Their claim[that they have been duly nominated is not'within the framework of the Act but is dehors the Act. It cannot therefore , be entertained. {16 C] ae oo
Charan lal Sahu: y. Shri Fakruddin Ali Ahmed, (A. IR) 1975 8. C. 1288; Charan Lal Sahuv. Neelam Sanjeeva Reddy, [1978] 3 SCR 1, referred to.
In the instant case, the nomination papers of the petitioners were rightly .
“= wt y
Typ oy
~#
* rs
CHARAN LAL V. ZAIL SINGH . o
5, It is of the essence of the functioning of a democracy that elections.to public offices must be open to the scrutiny of an independent Tribunal? [17 D]
In the instant cases, it is’ regrettable that election petitions challenging the’ ~. election to. the high office of the President of India should be filed in a # cavalierfashion. The petitions have an extempore appearance and not even a second look, appears to have been given to the manner of drafting these petitions or to the contents raised therein. The court’ refrained from passing any order of costs and, instead expressed disapproval | of the light hearted and indifferent , manner in which these petitions were filed. lt B-C]
Election Petition No. 4 of 1982.
1. The rights arising .out of elections, including the right to contest or” ' challenge an election, are not common Jaw rights. They are creatures of the, statutes which create, confer or limit those rights. Therefcre, for deciding the question whether an election can be set aside on any alleged ground, the courts have to consult the provisions of law governing the particular election. They ¢ have to function. within the framework of that law and cannot travel beyond it. Only those) persons on whom the right of franchise i is conferred by the statute can yote at the election. {19 E-G}
In the instant case, that right is conferred on every ‘elector’ as defined in section 2(d) of the Act. Only those person who are quatified to be elected to the particular office can contest the election. That’ right is regulated by section SA of the Act, The election can be called into- question in the manner ‘prescribed by the statute and not in any other manner. Secticn 14(1) of the: Act provides that no election shail -be called in question except by presenting an election petition to the authority specified in sub-section (2) which: is the Supreme’Court. The grounds for setting aside the election. to the office of the President or the Vice-President and the ground on which a candidate other than the returned candidate may be- declared to have .beert elected are laid . down in sections 18 and 19 of the Act, The election can neither be questioned nor set aside on any other ground. Therefore, the challenge to the election
_ of the returned candidate on the ground of his want of suitability to occupy . the office of the President cannot be entertained and must be.rejected. [20 DE] .
K. Venkateswara Rao v. Bekkam Narsimha Reddy [1969] 1 SCR 679 at 684 and Charan Lal Sahu v. Nandkishore Bhatt, [1974] 1 SCR 294 at 296 referred to.
_ 2. Suitability of a candidate is for the electorate to judge and not for the court to decide. The court cannot substitutd its own assessment of the suitability of acandidate for the verdict returned by the electorate. The verdict of the © electorate is a verdict on the suitability of the candidate. ‘Suitability’ is 2 fluid concept of uncertaif import. The ballot-box is, or has tobe assumed to be, its sole judge. {20 G-21 Aj : _
3. Itisnot opentoa petitioner in an Election® Petition to plead in terms of synonyms. In Election Petitions pleadings have to be precise, specific and
. unambiguous so as to put the respondent on notice, ‘The rule of pleadings that
- facts constituting the cause of action must be specifically pleaded is as fundemenial a itis Clementary. [23 A] ; ,
Jt f
‘10: ‘SUPREME COURT REPORTS _ ; [1984] 25.cR.
4... ‘Connivance’ may. in certain situetions amount ‘to ‘consent’, Dictio- ~ naries give ‘consent’ as one of the meanings of the word ‘ connivance’, But-it is not true to say. that ‘connivance’ invariably and necessarily. means or amounts
' to ‘consent’, that is to- say, irrespective of the context of the given situation.
The two cannot, therefore, be equated. Consent implies that parties are ad
' idem. Connivance does not hnecessarily imply that ‘parties ate of «one mind.
They may or may not be, depending tipon the. facts of the situation. [23° B-C]
5, Precision’ in pleadings particularly in Election Petitions is necessary. The importance of a. specific pleading in election petitions ‘can be appreciated onty if *it is realised that the absence of a specific , plea puts the. respondent at a°
- great disadvantage’ He must know what case hé has to meet. He cannot be ' kept guessing whether the petitioner means what he says. The petitioner cannot be elHowed to keep his 6ptions open uriti] the trial and adduce such evidence as
_seems' convenient and comes handy. tis therefore impermissible to substitute “the word ‘consent’ for the word ‘ connivance’ which occurs in the pleadings of the petitioners. [23 F, D- DF . : so _.@
. 6. “In the absence of -a pleading that the offence of undue influence was committed with the “consent” of‘the returned candidate, one of the main ingre- - dients of section 18(1) (a) remains unsatisfied. [23 Cj.
pe
7, When tle Act was passed in 1952, section 18 (1)(a) provided that the -
Supreme Court shall declare the election of the returned candidate void if it-is of opinion that the offence of -bribery or undue influence has been com mitted by the returned ‘candidate or by any person “with the connivance”’ of the returped candidate. This sub-section was aniended by section 7 of the Presiden tial and Vice-Presidential Election (Amendinent) Act, 5 of 1974. The word- ‘connivance’ (was substituted by the word ‘consent’ by the. Amendment Act.
“If ‘connivance’ carried ‘the same meaning as ‘consent’ and if one was the same
. as the other, the Parliament would not have” ‘taken the deliberate ‘step of.
deleting the word ‘connivance’ and substituting it by the word ‘consent’, The Amendment shows that ‘connivance’ and ‘consent’ consote distinct. concepts for the purpose of section 18 (1) (a). [23 G-24 B]
§. ‘The mere “Act of canvassing for a candidate cannot ambunt to undue influence within the meaping of Section 171C of the Penal Code. (26 Cc)
7 ‘Baburao patel . Dr. Zakir ‘Hussain [1968] 2 SCR 133; Shiv Kirpal Singh y. Shri-V.V Girt [1971] 2 SCR 197,320, 321; and Ram Dial v. Sant Lal 1959] Suppl. 2 ‘SCR 748 at 758, 759 referred to. : oe
9. The laws of election are * self-contained codes and the rights arising | out of elections are the off springs of those laws. The provisions of the
.% 40. The use of Government machinery, abuse of official position and
Representation of the People Act 1951 cannot be engrafted upon the ‘Presidential and Vice-Presidential {Elections Act 1952, to enlarge the scope of an election petition filed to challenge a Presidential: or Vice-Presidential election. Such an election can be set aside only on the grounds specified in section 18 (1) of the Act. (28 BC]
appeal to communal sentiments so long as such appeal does not amount to me
¥ f
~~
~ a Petition No. 4/82,
CHARAN LAL ¥. ZAIL SINGH At
4 “¢
"undue influence,are not considered by the Legislature to be circumstances which _ would invalidate a Presidential or ‘a Vice-Presidential election. [27 M; 28 A] °
LL. The'Act cannot be held to be unconstitutional on the ground that it
‘limits :the challenge to the Presidential and Vice-Presidential Election to the grounds set forth in section 18 @. While enacting a law in pursuance of: the power conferred by Article 71 (3), Parliament is entitled to specify the praticular kind of doubts or disputes which shall be inquired into and decided by the Supreme -Court. If every kind of fanciful doubt or frivolous doubt
_ will have to be inquired-into by this Court, election pet itions «will became ‘a fertile ground for fighting political battles. [28 F;28 G-H] .
'12. A candidate who: wants to contest the election for the office of thé
President cainot take the oath in any of the forms prescribed by the Third Sche- - . dule to-the Constitution. That Schedule does ‘not prescribe any form’ of oath . for a person who desires to contest aePresidential election. [29 E] *.
In the instant case, the averments in the Election petition, assuming them t¢ be true and correct, do not disclose any cause of ‘action for setting aside the election of the returned candidate on'the ground stated in section 18 (1) (a) of}.
the “Act, [28 D] a
Civit APPELLATE JurispICTION: Election Petition No. 2 of 1982 .
r
(Petition under Article 71 of the Constitution.) AND
‘Blection Petition No.3 of 1982. (Petition under Article 71 of the Constitution)
r ‘ ns
~: WITH.
' Blection Petition No. 4 of 1982. - (Petition under Article 71 of the Constitution. )
Petitioner in person in Election Petition No. 2/82.
Hari Shanker Jain and K.K. Gupta for the Petitioner i in Election
* Petition, No.3/82. ° ts
‘Shujaatullah Khan. and K.K. Gupta for the Petitioner i in Election
‘« + O.P Sharma, R.C. Gubrele, K.R Gupta and R. C. Bhatia. for the - Respondents j in Election Petition No.2/82.
e
Pp, R Mridul, AcK. Sen. O.P. Sharma, R.C: Gubrele, K.R Gupta. . and R.C. Bhatia ‘for the respondent i in Election Petition No. 3/82.
AK. Sen, J.S. Basu, O. P. Sharma, R.C. Gubrele, K.R Gupta and’ R.C. Bhatia for the respondent in Election Petition- No. 4/82.
-
Cc we
12 - a SUPREME COURT REPORTS | [1984] 2 s.ccr.
‘ ' OK Parasaran, Att, , Gerieral cand d RD. Agarwal. in all the. . "Blection n Petitions. - ,
- P.N Duda, H.L Tikkum, D.S. Narula 1 Pandit and 3 H.C. _ Agarwala for the Tntervenors..
. A.S. Pundir for the Intervenors. ". DAB. Vohra fot the Intervenors. Se . . T "The J udgment of the ‘Court was delivered by
- CHanpracuup, C.J . 1. These three Election: petitions are filed:
- under. section 14 of the Presidential and Vice-Presidential Elections - _ Act, 1952 to challenge the election of Respondent 1, -Giani Zail Singh, - as the President. of India. The election to the office of the President of India was held .on July 12, 1982. In all, 36 candidats had filed-- (nomination papers "including Shri Charan Lal, Sahu who is the peti- -tioner in Petition No. 2 of 1982 and Shri Nem Chandra Jain who is a) ithe petitioner in election’ Petition No. 3 of 1982. The Returning Officer
* accepted the nomination papers of two candidates only : ‘Gaini Zail Singh and Shri H.R. Khanna, a'retired J udge of this Court. The result. of the election was ‘published in the Extraordinary Gazette of India on ‘July 15. 1982 ‘declaring Giani Zail Singh as the successful candidate.
He took oath of ‘office on Fuly, 25, 1982. ~ | “
Wes will first take up for consideration Election Petitions 2 and 3 of 1982 which. are filed réspectively by Shri Charan Lal Sahu and
. Shri Nem Chandra Jain: both of whom, incidentally, a are Advocates,
Election Petition Nos. 2 & 3 of 1982:
~ ee,
‘Tn Petition No, 2 of 1982, the petitioner: asks for the following reliefs: —_
“OD That the. Constitutional Bieventh Amendment A Act i961. a. be declared ultra-vires of the Constitution.
+0) That the sections 5 (B) 6 and 5(c) 1 (3) of the Presidential
.. and Vice Presidential Election Act 1952 (Amended) with
_ Electiony Rules 1974 -be declared, illegal, void and unconstitutional, under Aiticle 58 of the Constitution.
se ay”
CHARAN LAL‘. ZAIL SINGH (Chandrachud, *CJ,) 43
- (3) . That is the post.of Prime Minister and other. Ministers. ‘be declared. that ‘they are in office of profit hence they, have played. undue infl uence in the election of the returned oo Candidate. a
- (4) That the election of the (Returned Candidate) Respon- "°° dent No. 1 be declared void and nomination of respon-"_ _dent No. 2-be declared illegally. accepted ‘thus the - "'*, petitioner be declared ‘as elected as President under the - . °°. Constitution, as stated in the petition u/s 18, of the
'. (3) That the - above system of election. of President is bad
7 and unconstitutional therefore, it should be held directly in future: by: all-the electotals and Union of India be directed to amend Articles. 34, 55 and %6 ‘of the the -
“Constitution of India. (6) That sections 4) (2), 5,6, 7, & 11 of the’ Salaries and Allowances of Ministers Act, 1952 (Act No. 58 of 1952) | , along with sections 3, 4, 5, 6, 7,8, and 9 of the Salaries _ and Allowances of Members of Parliament. Act,. 1954 : be dectared void and ‘unconstitutional. ” (Advisedly, we have not touched up the prayer-clauses. )
- In Petition No. 3 of 1982, the petitioner prays that the election of Respondent | ‘be set. aside ‘on the’ various grounds mentioned. ma
_ the: petition.
‘Apart from making several vague, loose and offhand allegations, the petitioners allege that Respondent 1 exercised undue influence over
* the voters through his confidants. We do not consider it necessary. to reproduce those allegations ‘since we are of the opinion tha: these petitions ; are not maintainable. a Cig ’
A preliminary objection is taken to the maintainability - of
_ these petitions by- Shri Asoke Sen who appears on.behalf.of Respon- © . ‘dent 1 and by the learned Attocney General. They contend that neither of the two petitioners was a ‘candidate’ within the meaning of section - 13(1). of the Act and sitice, under section 14A; an.election petition can-
- be filed only by a‘person who was a candidate at the election, .the ‘petitioners. have no standing to file the petitions and therefore,the _ Petitions must be dismissed asnot-maintainables ~j,..ie.cn 6 ait
. » t-
Li
‘H
: 44: | "SUPREME COURT REPORTS | ; [1984] 2 SCR.
“Since the petitioners contested their alleged: lack of locus to file. the petitions, the following issue was framed by us a preliminary i issue
- in each of the two election petitions: *,
‘Does the pétitioner have no Jocus standi to maintain the: petition on the ground that he was not a ‘candidate’ within the meaning-of section 13(a) read with section ‘14A of the © Presidential arid Vice- Presidential Elections Act, 1952 ?”
‘Section 14 of the Act provides by’ ‘sub- section (1): that no election | shall be called in question except by presenting an election petition to-, - the authority specified in sub-section (2). According to sub-section (2), . the authority having jurisdiction’ to try an election. petition is the Supreme Court. By section 14A(1) of the Act, an election petition may be preserited on the grounds specified in section 18(1) and 19 “by any
8, candidate at such election” or, “in the éase of Presidential elelction”
by twenty or more electors joined together as petitioners”. Section 13(a) of the Act provides that unless the context otherwise requires, ‘candidate’ means a person “‘who has been. or claims to have been duly nominated as a candidate at an election”.
These provisions show that there are three pre-conditions ‘which
_ govern an election petition by which.a Presidential election‘is challenged. - In the first place, such a petition has to be filed in the Supreme “Court. Secondly, the petition must disclose a challenge to the election ‘ on one or more of the grounds specified in sub-section (1) of section - 18 or section 19.: Thirdly, arid that is important for our purpose, an ’ election petition can be presented only by.a person who was a candidate _at the Presidential election or by twenty’ or more electors joined “together as petitioners. Since the two election petition which are at ” present under‘our consideration have not-been filed by twenty or more electors, the question which arises for our consideration is whether the - two petitioners in the respective election petitions were ‘candidate’ at the election held to the office of the President of India. ,
The definition-of the word: ‘candidate’ in section 13(a) of- the
~ Act consists of two parts. ‘Candidate’ means a person who - has ‘either been duly nominated as a candidate at a presidential election or a ‘person who claims to have been duly nominated. Neither of the two
* petitioners was duly nominated. This is incontrovertible. Section 5B
(1) (a) of the. Act provides that on or before the date appointed for
- making nominations,. each candidate shall ‘deliver ‘to the Ruturning Officer a nomination’ paper completed in the-prescibed form, sub-
™ t tA
CHARAN LAL vy, ZAIL SINGH (Chandrachud, CY 7 ~& 45 scribed by the candidate -as assenting tothe nomination, and “in the — case of Presidential election,.also by at least ten electors as: proposers and at least ten electors as seconders”. It is common ground that the nomination papers filed by the two petitioners were not subscribed by ten electors as proposers and ten electors as séconders. In fact, it
‘is precisely for-that reason that the nomination papers filed by the two petitioners were rejected by the Returning Officer. Since the nomination papets of the two petitioners were not subscribed as required by section 5B (1) (a) of the Act, it must fotlow- that they were notduly nominated as candidate at the-election. .
"The petitioners,. however, contend that even Lif itis held that
’ they were not duly nominated as candidates, their petitions cannot be * ‘dismissed on that ground since they ‘claim to have been duly nomi- nated’, It is true that in-the matter of claim to candidacy, a person -
. who claims to have been duly nominated is on par with a petson
“who, in fact; was. duly. nominated. But. the claim to have been duly * nominated cannot be made by a person whosé ‘nomination.paper does . not comply with the mandatory requirements of section 58- (1) (a) of the Act. That is to say, a person whose nomination paper, admittedly, was not subscribed by the requisite number of electors as proposers and seconders cannot claim that he was duly nominated. Such a claim | can only be made by a peson who can show that his nomination paper conformed to the provisions of section 58 and yet it was rejected, that is, wrongly rejected ‘by the Returning Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that one of the ten subscribers who’ had proposed the nomination is not an elector, the petitioner can claim to have been duly nominated if he proves that the said Proposer was in.fact an ‘elector’.
- . Thus; the ‘occasion for a person to make-a claim that he was duly nominated can arise only if his nomination paper complies with | the statutory requirments which govern the filling of nomination papers and not otherwise. The claim that he was ‘duly’ nominated
. necssarily implies and involves the claim that his nomination paper conformed to the requirments of the statute. Therefore, a contestant whase.nomination paper is not subscribed by at least ten electors as proposers and ten electors as seconders, as required by. section 58(1) (a) of the Act, cannot claim to have been duly nominated, any more than: a contestant who had not-subscribed his assent to his own nomination can. The claim of a contestant that he was duly nominated must arise out of his compliance with the provisions of the Act. It cannot arise out of the violation of the Act. Otherwise, a person who had not filed .
: spd VAAISTEL SCR de a e.
- 16. oe . - SUPREME COURT REPORTS - - [1984] 2S.C.R.
: we * i any nomination paper at all but who had onl ; informed ‘the Retiring: - Officer orally that: he desired to: contest the election could also contend — that he “claims to have been duly nominated as a candidate”. .
Itis not. the*case of the- petitionérs that the. Returning ‘Officer had wrongly rejected their: nomination papers even though they were
' subscribed by ten or more électors as proposers‘and ten or moreelectors . ‘* as seconders, Not: only were the nomination papers rightly rejected on. the.ground of: non-compliance with the mandatory requirement of "*
. section 58(1) (a) of fhe Act, but the very case of the petitioners is that.
their nomination papers'could not have been rejected by the Returning.
- Officer on the ground of non-compliance with. the aforesaid provision; Thus, their claim that they.have been duly nominated is.not within’. the . framework of, the ‘Act but is’ de hors the. Act. ‘It cannot be — entertained. , : .
* In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed) the petitioner
- Claimed to have been duly nominated as a candidate though his nomi- | nation paper was rightly rejected on the ground of rlon-compliance
-with the provisions of sections 5B and ‘SC. ofthe Act. It was held
-by this Court that merely because a candidate: is qualified under
Article 58 of the Constitution, it does not follow that he is exempt
_ from compliance with the requirements of law which, the Parliament:
" has. enacted ‘under Article 71(3) for regulating. the mode and_ the manner in’ which nominations should be filed. Since the petitioner did not comply with the provisions of the aforesaid two sections, it was held that he could not claim to have been duly nominated and was therefore not a “candidate’’, In the tesult, the election petition . was, dismissed by the Court on the ground that the petitioner did.
not have the locus standi to maintain if:
‘The challenge of the petitioners: to ‘the ‘provision contained in.
section 5B (1) (a) of the Act on the ground of its-alleged unreasona: ° bleness has no substance in it. The. validity of that provision was upheld by this Court in Charan Lal Sahu v. Neelam Sanjecva Reddy.@) Besides, if the petitoners have.no locus to file the election petitions, they cannot be heard on.any of their contentions in these petitions.
Accordingly, our finding on n the preliminary 1 issue is against the .
7 petitioners. ‘We. hold. that they have no /ocus: standi to file the election
1 ae e
- (1) AIR 1975 S.C: 1288 or - dismissed.
. a +
- CHARAN LAL ¥. ZAIL SINGH (Chandrachid, C.J.) > 17 petitions since they were neither duly nominated nor can they claim to have been duly nominated as candidates at the presidentiaLelection. In view of this finding, Election Petition Nos, 2 and 3 of 1982 are
It is regrettable that election petitions challenging the election, te the high Office of the President of India should be filed in a fashion as cavalier as the one which characterises these two petitions. The petitions have an exteMpore appearance and not even a second ‘took, leave alone a second thought appears to have been given to the
_manner of -drafting these petitions or to.the contentions raised
« therein. In order to discourage the filing - of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been ‘constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice- Presidential eleetion is challenged’ is loathe to entertain such petitions. It is of the essence of the functioning of a democracy that election to public offices’: must be open to the scrutiny of an independent tribuna!. A heavy order of costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion. Therefore, we refrain from passing any order of costs and, instead, express our disapproval of the light-hearted and indifferent manner in which these two petitions are drafted and filed. .
Election Petition No. 4 of 1982
This Election Petition is filed by 27 Members of the Parliament to challenge the clection of Giani Zail Singh as the President of India.
The petitioners belong to four Opposition Parties : The Lok Dal; The Democratic Socialist Party of India, the Bharatiya Janata Party and the Janata Party. _ These parties had jointly sponsored the candidature of Shri H.R. Khanaa, a former Judge of this Court. Giani Zail Singh — _ was returned as the successful candidate by a large margin of votes.
The petitioners, being Members of the Parliament, were electors at the Presidential election. Their standing to file this. petition is uaquestioned.
One of the principal challenges of the petitioners to the election of Giani Zail Singh is that he is not a ‘suitable person”. for holding
"the high office of the President of India. The petitioners have given their owo reasons in support of this contention in paragraphs 5 te $
18 SUPREME COURT REPORTS - . - [1984] 2 S.C.R,
_ of the petition. | No useful purpose will be served by ‘repeating those
" reasons in this judgment since, we are of the opinion that the election | to the offics of the President of India cannot be questioned on the _ground that the returned candidate i is not a suitable person for holding that office,
The foliowing i issue arises on the above contention raised by _ the petitioners > an -
“Can the election of a candidate {o the office of the | pf President of India be challenged on the ground that he is not a suitable person for holding that office?
-Séction 18 of the Presidential and ‘Vice-Presidential Elections “Act, 1952, which specifies the “grounds for declaring the electian, of.
a returned candidate to be void“, reads thus : -
“18, (1) If the Supreme Court is of opinion, —
(a) that the offence of bribery-or undue influence at the ‘election’ has heen committed by, the returned .candidate
_or by any person with the consent of tbe returned candi- _ dato; ot
(b)- that the result of the election has been materially , affected— ‘ i
(i) by the improper reception or refusal of.a vote, or
(1) by any non compliance with the provisions of the . Constitution ar of this Act or of any rules or orders made wander this'Act; or
(iit) by ‘reason of the fact that the nomination of any . candidate (other than the successful candidate), who has . “not withdrawn his. candidature, "has been wrongly ‘accepted; or’ _ x
(c) that the nomination of any candidate has been. wrongly - rejected or the nomination of the succéssful candidate has been wrongly accepted . . “od the Supreme Court shall declare the election of the returned : ; candidate to be void.
(2) For the purposes of this section, the offenees -of :
a
CHARAN LAL V. ZAIL SINGH (Chandrachud, C.J.) ". 19"
bribery and undue influence at an election have the same’ _ -. meaning as in-Chapter IXA of the Indian Penal Code,”
Section 19 of the Act which specifies the “grounds for’ which a candidate other than the returned candidate may be declared to have been elected” reads thus: .
- “If any person who has lodged an election petition has, in addition to calling in question the election of the returned
_ candidate, claimed a declaration that he himself or any other candidate has been duly ctected and the Supreme Court is of opinion that in fact the petitioner. or such other candidate
‘received a majority of the valid votes, the Supreme Court shalt, after declaring the election of the returned candidate to besoid, declare the petitioner or such other candidate, as os the case may be, to have been duly elected :
Provided’ that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have becn void if he had ; been the: returned candidate and a’ petition had been pre-
‘sented calling in question his election”.
These being the on'y provisions of the Act under. which the election of a returned candidate can be declared void, the question
‘as to Whether the returned candidate is suitable for holding the’ office '. of the President is irrelevant for the purposes of this election petition.
While dealing with. an election petition fled under section 14.of the Act,- this: Court cannot inquire into the question whether the returned candidate is suitable for the office to which he is elected. The rights arising out of elections, including the right to contest or chal- lenge an elétion, are not common law rights. They are creatures of . the statutes which create, confer or limit those rights. Therefore, for deciding the question whether an election can be set aside on any alleged giound, the courts have to consult the provisions of law governing the particular election, They have to function within the framework of that law and cannot travel beyond it. Only thosé Persons On whom ‘the right of franchise i is conferred by the statute can vote. at the-election. {n the instant case, that right is conferred on every : ‘elector’ as ‘ defined i in 1 section 2(d) of the Act, which provides:
“ selector’. in relation to a presidential election, means a member of the electoral 'college referred to in article 54; and
20 : SUPREME COURT REPORTS _ {1984} IScr.
in relation to a Vice-Presidential election, means a member of the electoral college referred to in article 66".
Only those persons who are qualified to be elected to the particular office can contest the election. In the inStant case, that right is regulated by séction SA of the Act which provides :
“Any person may be rlominated as a candidate for elec- tion to the office of President or Vice-President if he is qualified to be by elected to that office under the Constitu- - tion” :
The election can be called into question in the manner prescribed by the statute. and not in any other manner. Inthe instant case, section 14(1) of the Act ptovides that no- -election shall be-called in question except’ by presenting an election petition to the authority specified in siib-section (2). By sub-section (2) of section 14, the . Supreme Court is constituted the sole authority for trying an election -petition. Finally, an election can be called'into question and set aside on those grounds only which are prescribed by the statute. In the instant case, the grounds for setting aside the election to the office of the President or the Vice President and the grounds on which a candidate other than the returned candidate may be declared to have been elected are laid down in sections 18 and 19 of the Act. The election can neither be questioned nor set aside on any other ground.
' Therefore, the challenge to the election of the returned candidate on the ground of his want of suitability to occupy the office of the President cannot be entertained and must be: rejected out of hand. (See K. Venkateswara Rao v. Bekkam Narsimha Reddy® & Charan Lal Sahu v. Nandkishore Bhatt.)
"Apart from the leg gal position that ‘the rights flowing out of an
‘election are statutory and not common law rights, it is impossible to- “conceive that any court of law can arrogate to itself the powet to deélare an election void on the ground that the returned candidate is not a suitable peison to hold the office to which he is elected. Suitability ofa candidate 1 is for the electorate to judge and not for the court to decide, * The Court cannot substitute its own assessment of the * suitability of a candidate for the verdict returned by the electorate.
The verdict of the electorate is a,verdict.on the suitability of the
(1) [1969] 1 SCR 679 at 684
(2) [1974] 1 SCR 294 at 296
CHARAN LAL Y. ZAIL SINGH (Chandrachud, C.J.) 2h candidate. ‘Suitability’is a fluid concept.of uncertain import. The ballot-box is, or has to be assumed to be, its sole judge. Were the Court to exercise the power to set aside an election on the ground that, in its opinion, the returned candidate is not a suitable person for the office to which he is elected, the statute will. stand radically amended so as to give to the Court a virtual right of veto on the
“question. of suitability. of the rival candidates. And then, an un- successful candidate will challenge the election of the successful candidate on the ground that he is more suitable than the latter. That is an impossible fask for the Courts to undertake and indeed, far - ;
beyond the limits of judicial réview by the most liberal standard.
Accordingly, the challenge to the élection of the returned candidate on the ground that he is nat suitable for holding the office of the President of India fails and is rejected. Our finding on the issue is in the negative.
“The other grounds on which the petitioners have challenged the election of Respondent | are these ; (1) That Shri M.H. Beg, | former Chief Justice of the Supreme Court and now Chairman of the Minorities Commission, was engaged by Respondent I and by the Prime Minister Smt. Indira Gandhi “for influencing the votes of
“the Minority communities”; (2) that Rao Birendra Singh, a cabinet Minister of the Government of India, who is a “supporter and a close associate” of Respondent:1, exercised ‘undue influence over the voters by misusing the Government machinery in that, a statement issued by him asking the voters to vote for Responent | was published by the Press Information Bureau, Government of India; (3) that the Prime Minister participated in-the election campaign of Respondent | and misused the Government machinery for that purpose; (4) that the Prime Minister made a communal appeal to the Akali Dal that its members should vote for Respondent 1; and (5) that Government helicopters and cars belonging to the Government were misused for the purpose of ‘election of Respondent 1. It is alleged by the petitioners that these various acts were committed by the well-wishers and supporters, of Respondent l with his connivance. ‘
It was contended by Shri Asoke Sen that, even “assuming that these allegations are true, they do not disclose any cause of action for setting aside the election of Respondent I. In view, of these rival
‘contentions, we framed the following i issue for consideration :
“Whether the averments in the’ Election Petition, assum-
22 " * SUPREME COURT. REPORTS - . 11984] 2s.cr.
ing them to be true and correct, disclose any cause of action for setting aside the election of the returned candidate (Res- pondent.!)on the ground stated in section 18(1) (a) of the Presidential and Vice-Presidential, Elections Act, 1952?" -
Section 18(1) (a) of the Act which we have already ‘set. out, .
provides that the Supreme Court shalt dectare the election of the returned candidate to be void if it is of opinion— :
“that the offence of bribery and undue influence.at the election has been committed *by the returned candidate or by any person with the consent of the returned candidate.”
(emphasis sped)
We may keep : aside the question of bribery since there is no allegation in that behalf. Nor is it alleged that the. offence of 7 '- undue influence was’ committed by the returned candidate himself. ‘The allegation of the petitioners is that the offence of undue influence was committed by certain supporters and close associates of Respon- dent 1 with -his conniyance. It is patent that this allegation, even if it is true, is not enough to fulfil the requirements of section. 18(1)
’ (a). What that section, to the extent relevant, requires is that the offence of undue -influence must be committed by some other person with the .“consent’’ of the returned candidate. There in no plea whatsoever in the. petition that undue influence was exercised by those other persons with the consent of Respondent 1.
It is contended by Shri Shujatutlah Khan who appears on.
+ behalf of the petitioners, that connivance and consent are one and -_ the same thing and that, there is no legal distinction between -the two concepts. In support. of this contention, learned counsel! relies upon the meaning of the-word ‘connivance’. as given in Webster's
’ Dictionary (Third Edition, Volume 1, p: 481); Random House
Dictionary (p. 311); Black’s Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173); and-Corpus Juris
Secundum (Volume 15A, p. 567). The reliance on these dictionaries and texts cannot carry the point at issue any further, The relevant question for consideration for the decision of the issue is whether
. there is any pleading inthe petition. to the effect that the offence of. undué influence was committed with the consent of the returned, . ' candidate. Admittedly, there is no pléading of consent. Itis then”
no answer to say that the petitioners have pleaded connivance and, according to dictionaries, connivance means consent. The plea of ©
/ section 18) (a) remains unsatisfied. .
e
CHARAN LAL ¥. ZIAL SINGH (Chandrachud, C.J.) - BB .
consént is one thing : the fact that connivance’ means consent
(assuming that it does),is quite another. It is not open to a petitioner .
in an Election Petition to plead in terms of synonyms. In these peti.
tions, leadings have to be precise, specific and.‘unambiguous so as ~ p & i P g
“to put the respondent on notice. The rule of pleadings -that faets ©
- constituting the ‘cause of action must be specifically pleaded is as findamental as it is elementary. “‘Connivance’ may in certain situations amount ‘to consent, which explains why the dictionaries give
‘consent’,as one of the meanings of the word ‘connivance’. But it is not'true to say that ‘connivance’ invariably and necessarily means of ‘amounts to consent, ’that is to say, itrespective of the.context of the
- given’ situation. The two: cannot, thevefore, be* equated. ,Consent implies: hat parties are ad idem. ‘Connivance does..not necessarily imply that parties are of. one mind. They may or “may not be, depending upon the facts of the situation. ‘That'is why, in the absence ‘ofa pleading that the offence of undue influence was committed ‘with. the consent of the returned’ candidate, one of the main ingredients ef s XN
The importance of a specific pleading in these matters can be . appreciated only if it is realised that the absence of a specific plea puts the respondent at a gieat disavantage. He must know what case be has to meet. He cannot be kept guessing whether the petitioner means what she says, ‘connivance’ here, or whether the petitioner has. used expression aS meaning ‘consent’.’ It is remarkable that, in their petition, the petitioners have furnished no particulars of the alleged consent, if what i is meant by the use of the word connivance is con- trial and adduce such evidence of consent ‘as seems convenient, and ’ comes handy. That is the -importance of” precision in ‘pleadings, particularly in election petitions. ‘Accordingly, ‘it is impermissible te substitute the word ‘consent’ for the word ‘connivance’ which occurs in the pleadings of the petitioners. .
The legislative history of'the. statute lends support’ to- our view that for the purposes of section 18(1) (a), connivance is not the same thing as consent. Originally, when the Act was passed in 1952, section
18(1) (a) provided that the Supreme Court shall declare the election of the returned candidate void if it is of optnion that the offence of bribery or undue influence has been committed by the returned candi-’ date or by any person ‘with the connivance’ of theretu rned candidate. This sub-section Wa$ amended by section 7 of the Presidential and Yizr-Prosidzatial Blections (Am2adment) Act, 5 of 1974, which camie
- sent. They cannot be allowed to keep their options open until the ;
A.,
24 _ SUPREME COURT REPORTS [1984] 2 s.c.r.
into force on March 23, 1974. The word ‘connivance’ was substituted by the word ‘consent’ by the Amendment Act. If connivance carried
' the same meaning as consent and if one was the same as the other...
Parliament would not have taken*the deliberate step of deleting the word ‘connivance’ and substituting it by the word ‘consent’. The améndment made by’ the Amendment Act of 1947 shows that connivance and consent connote distinct concepts for the purpose ‘of section 18(1) (a) of the Act, .
. t .
Since, admittedly, there is no pleading in the Election Petition that the offence of undue influence was committed with the consent - of the returned candidate, ,the petition must be held to disclose no . cause of action for setting aside the election of the returned candidate " under section 18(1)(a) of theAct. ~ .
Apart from. this, Shui Asoke Sen is right that granting everything
. in favour of the petitioners and assuming that all that they have alleged ‘is true and correct, no case is made out for setting aside the election
_of the returned candidate under section 18(1) (a) of the Act. We | will first take up the allegation of the petitioners that Shri M.H. Beg,
-Chairman of the Minorities Commission, canvassed support for:
‘Respondent 1. The question which we have to consider is whether, in doing so, Shri Beg is guilty of the offence of undue influence. Section 18(2) of the Act provides that'for purposes of section 18, _the offences of bribery and undue influence at an election have the
' game meaning as in Chapter IXA of the Penal Code. That Chapter ‘which was introduced into the Penal Code by Act 39° of 1920, deals with’ “Offences relating to Elections”. Sections 171B-and 171C of the Penal Code define the offences of bribery and undue influence
_ respectively, Section 171C reads thus : .
| “Undue influence at elections:
171C. (1) Whoever véluntarily interferes.or attempts to _interfere with the free exercise of any electoral tight commits ’ the offence of undue influence at an election.
» (2) Without prejudice to the generality of the provisions ‘ of.sub-section (), whoever— os
» (a) threatens any candidate. or voter, or. any person in whom a candidate or voter is interested, with injury of any kind, or
-¢ ye
*, :
CHARAN LAL y. ZaIL SINGH (Chandrachud, CJ ) 25
(b) induces or attempts to induce: a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, ~ shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1), we
(3) A declaration. of public policy or a promise of , public action or the mere exercise of a legal right without in-’ ' tent* to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.”
The gravamen of this section is that there must. be interference of attempted interference with the ‘free, exercise’ of any electoral tight. ‘Electoral right’ is defined by section I7IA(b) to mean the
“right of a person to stand, or not to stand as, or to withdraw from ~ being, a candidate or to vote refrain’ frofh voting at an election, In so far as is relevant for our purpose, the election petition must show that Shri Beg interfered with the free exercise of the voters’
- right to vote at the Presidential election. The petition does not allege _ or show that Shri Beg interfered in any manner ‘with the free exercise of the right of the voters to vote according to their choice or conscience. The petition alleges that Shri Beg commented severely upon the suitability of the rival ‘candidate Shri H.R. Khanna.by pointing out the so-called infirmities in his judgment in,the Fundamental Rights case. On the Supposition that Judges constitute brotherhood and are bound by ties of institutional loyalty, one may not approve of the tone and temper of the personal attack made by
Shri Beg on Shri H.R. Khanna. But that is beside the point. We ~ are neither concerned with the propriety of the statement made by Shri Beg nor with the question as to who, out of the two candidates, -
“is more suitable to be the President of India. The point’of the matter is that by conveying to the voters that Respondent 1 was a
_ tauch safer candidate than Shri Khanna and that Shri Khaana would not be a suitablé candidate to hold the office of the President -of India by reason of a judgment of his, Shri Beg could not be said to have interfered with’ the free exercise of the right of the voters to vote
_ atthe election. If the mere act of canvassing in favour of one candi- | date as against another were to amount to undue influence, the very process of a democratic, election shall have been stifled because, the tight to canvass support for a candidate is as much important as the -
G |
F ;
‘26 = SUPREME COURT REPORTS [1984] 2 s.c.r, right to vote for a candidate of’ one’s choice. Therefore, in order that - -the offence of undue influence can be said to have been made out Within the meaning of section’ 171C of the Peaal Code, something ©. more than the mere act of canvassing for a candidate must be shown ;
to have been done by the offender. That something more may, for example, be in the nature of a threat of an injury to a candidate or
"a voter as stated in sub-section 2(a) of section 171C af the Penal: - Code or,‘it may consist of inducing a belief of divine displeasure in the mind of a candidate or a voter as stated, ia sub-section 2(b).
The act ailegod as constituting undue influence must be in the nature © .Of’a pressure or tyranny on the mind of the candidate ur the votei. . . . . . 4 . .
It ts not possible to enumerate exhaustively the diverse categorise ‘of.
acts which fall within the definition of undue influence. It is enough for our purpose to say, that’ of one thing there can be no doubt : The mere act of canvassing for a.candidate cannot amount to undue influence withia the meaning Of section 171C vf the Penal Code.
In Baburao Patel v. ‘Dr. Zakir Husain, ) this Court while em-
7 phasising the distinction between mere canyassing and the exercise of. undue influence, observed : , 4
“Tt is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference - with the free exercise of any electoral right begins, That is a matter to be determined in each case; but there can be
- no--doubt that, if what is done is merely canvassing, it’. would not be undue influence, As sub-section (3) of section 171C shows, the mere exercise of a legal right without intent to interfere with an electoral right, would not be undue ~
' _influence”* . . ” [a Shiv Kirpal Singh v. Shri V.V. Giri, the Court observed that “if any acts are done which merely influence the voter in making his chuice: between one candidate or another, they will not amount to interfetence with the free éxercise of the electoial. right”, that: the expression, ‘free exercise’ of the electoral right must be readin the context of an election in a dembcratic syciety and, therefore, candi-
“dates and their supporters must be’ allowed tg canvass support by all legal and legitimate means. Accordingly, the offence of undue influerice can be sutd to have been committed only if the voter is put under a
() [1968} 2 S.C.R. 133. (2) [1971] 2 S.C.R: 197, 225, 320, 321.
a
CHARAN LAL. ZAIL SINGH (Chandrachud, C.J.) ey,
- threat of fear of some adverse consequence, ot if he is induced to _ believe that he will become an object-of divine displeasure or spiritual censure if he casts or-does not cast a ‘vote in accordance with his decision : “But, in cases where the only act done is for the purpose .
of convincing the voter that a particular candidate is not -the proper candidate to wliom the vote should be given, that act cannot be held to be one which interferes with the free.exercise of the electoral right’’,
Ram ‘Dial v. Sant EalY was a case of-undue influence under proviso (a) (ii) to section 123(2) of the Representation of the People
‘Act, 1951. Fhe appellant therein had circulated a poster under the — authority of the supreme ‘eligious leader of the Namdhari Sikhs ina constituency where a large aumber of yoters wete Namdhari Sikhs. This Court observed that there cannot be the least-doubt that even a religious leader has the right freely’to express his opinion on the com- parative merits of tlic coritesting candidates and to canvass for such of them as he. considers worthy of the confidence of the clectors. Such a course of conduct on his part will only be.a use of his great influence amongst a particular section of the voters in the constituency'and that, it will amount to an abuse of his great influence only if the words which he utters leave no choice to the persons addressed-by him in the exercise of their electoral rights. On the facts of the case it was held -’
that the teligious leader, by his exhortations ‘and warnings to the Namdhari elctors, that disobedience of his mandate will carry divine displeasure and spiritual censure left no choice to them to exercise
‘their ri ight of voting freely.
Thus, the allegation of the pestitioners that Shii Beg asked the - ‘voters to cast their votes in favour of Respondent tand not to cast them for Shri H.R. Khanna on the ground that the-tatter was not asafe or suitable .candidate. as compated with Respondent 1, does
’ not make out the offence of undue influence as defined in Section
171C of the Penal Code. It must foltow that the Election” Petition does not disclose any cause of action. for setting aside the clection of Respondent 1 on the ground of undue ‘influence as. specified.in
_ section 18(1) (a), of the Act.
The remaining: grounds alleged , by the petitioners for invalida.
ting the. election of Respondent 1 are misconcetved.. The use of
- Government machinery,’ abuse of official position and appeal to communal sentiments so long.as such appeal does not. amount to -
“(a)_ 11959] Suppl. 2 SCR 748 at 758, 759.
28 SUPREME COURT REPORTS [1984] 2 s.cr.
‘ undue inf luence, are not tonsidered by the Legislature to be circums- tances which would invalidate a Presidential or a Vice-Presidential
-election. Assuming, therefore, that any such acts were done, they __ cannot be’ relied upon for declaring the election of Respondent 1 void. As. we have said already, the laws of election are self-contained codes and the. ‘rights arising out of elections are the off-springs of - ° those laws. We cannot ertgraft the provisions of the Represenation’
of the People Act, 195! upon the statute under consideratiotn and thereby enlarge the scope of an election petition filed to challenge a Presidential or Vice-Presidential election. Such an election can be _ set aside on the grounds specified in section 18(1) of the Act only.
Since the. other allegations made by the petitioners do not fall within ~ the Scop: of that provision, they have to be rejected.
For these reasons, our finding on the issue under consideration is that the-averments in the Election Petition, assuming. them to be
‘true and correct, do not disctose any cause of action for setting aside the election of the returned candidate on the grounds stated in section ~ °18(1) (a) of the Act.
It was contended on behalf of the petitioners that the Act would be unconstitutionalif it is interpreted as limiting the challenge - ’ to the Presidential or Vice-Presidential election to the grounds set forth in Section 18(1). In support of this argument reliance is placed
_by fearned counsel for the petitioners on the provisions contained in
Article. 71(1) of the Constitution which says : ‘‘Al! doubts and disputes arising out ofror in connection with, the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whiose decision shal be final”. It is urged that the Constitution has conferred upon the Supreme Court the power to inquire into and decide upon every’ kind of doubt or‘dispute arising out of or in connection with a Presidential eleetion and since, section 18(1) restricts that power to the grounds stated therein. it is ultra vires Article 71(1). This arguinent overlooks that clause (3) of Art. 71 confers powet upon the Parliament, subject to the provisions of the Constitution, to make alaw for regulating matters relating to or connected with the election of the President or the Vice-President. |
While enacting a law in pursuance of’ the power.conferred by Article 71(3), the Parliament is entitled to specify the particular kind of doubts or disputes . which shal! be inquired into and decided by the Supreme Court. If the petitioners were right in thcir contention, every kind of fanciful doubt or frivolous dispute under. the sun willhave to be inquired into by this Court and election petitions - vt ba
CHARAN LAL Y. ZAIL SINGH (Chandrachud, C.J.) 29
_will become a fertile ground for fighting ‘political battles. _
That leaves for consideration -one other contention. Article 58(1) of the Constitution provides that no person shall! be eligible for election as President unless he (a) is ‘a. citizen of India, (b) has completed the age of thiry-five years, and (c) is qualified for election as a member of the House of the People. Article 84(a)
provides that a person shal! not be qualified to be choseri to fill: a seat in Parliment unless, inter alia he makes and subscribes an oath ot affirmation set out for the purpose in the Third Schedule: The argument of the petitioners is that a candidate contesting a Presidential election must take the oath as prescribed by Article 84(a)
and since Respondent 1 had not taken such oath, his election is © unconstitutional. prescribes ‘Qualifications for elections as President”, provides three
This argument is unte nable. Article 58 which conditions of eligibility for contesting the Presidential election.
One‘of these’ conditions is that the, cadidate must be qualified for election as a member of the House of the People. -Article 84 speaks of “qualifications for membership of Parliament”. No person can fill ‘a seat in the Parliament unless, inter alia, he subscribes,to the oath or affirmation according to the form set oat in the Third Schedule. The form prescribed by the Third Schedule shows that it is restricted to candidates who desire to contest the election to the Parliament. In the.very nature of things, a candidate who wants to contest the election for the office of the President cannot take the oath in any of the forms preséribed. by the Third Schedule. That Schedule ‘does not’
prescribe any form of oath for a person who desires to contest a Pre- sidential election.
In the result, Election Petition No. 4 of 1982 is ; also dismissed. There will be ‘no order as to costs.
N.V.K. -
™
Petitions dismissed.