# [1952] 1 S.C.R. 218

- **Citation:** [1952] 1 S.C.R. 218
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Case No. 351 of 1951
- **Bench:** PATANJALI SAsTRr C.J, FAZL Au, Mehr Chand Mahajan, MuKHERJEA, DAs, CHANDRASEKHARA ArYAR JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-218-2
- **Pages:** 23

## Headnote

Constitution of India Arts. 226, 324 to 329-Representation of the
People Act, 1951, ss. 36, 80--Election to Legislatures-Rejection of
nomination paper-Applicati-on to High Court for writ of certiorari
-Maintainability-..furisdiction
of
High
Court-Meaning
of
"election" and "questioning election"-Poli"cy of Legislature
with
regard to elections-Special remedies.
Article 329 (b) of the Constitution of India provides that
"no election to either House of Parliament or to the House or
either House of the Legislature of a State shall be called in question except by an election petition presented to such authority
and in such manner as may be provided for, by or under any law
made
by
the
appropriate Legislature."
The Representation of
the People Act, 1951, which made detailed provisions for election
to the various Legislatures of the country also contains a· provi~
sion (sec. 80) that no election shall be called in question except
by an election petition presented in accordance with the provi~
sions of the Act.
The appellant\ who was a candidate for election to the Legislative Assembly of the State of Madras_ and whose nomination
paper was rejected by the Returning Officer, applied to the High
Court of Madras under article. 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:
Held by the Full Court (PATANJALI SASTRI, C. J., FAZL Au,
MAHAJAN,
MuKHERJEA,
DAS
and
CHANDRASEKHAR.A
AiYAR JJ.)
that in view of the provisions of articles 329 (b) of the Constitution and sec. 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 word uelection" 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
,_
'·
4'
..
..
S.~.R.
SUPREME COURT REPORTS
219
narrow sense it is used to mean the final selection of a candidate
· 1952
which may embrace the. ·result of the poll when there is polling
or a particular candidate being returned unopposed when there
is
N. P. Ponnuno poll. In the wide sense, the word is used to connote the entire
f.Wam1
process culminating in a candidate being declared elected
and it"
.v.
is in this wide sense that the word is used in Part XV of the Returmng Officer,
Constitution in which article 329 (b) occurs.
Namak,k,al
Constituency a1ld
The scheme of Part XV of the Constitution and the RepreOthers.
sentation of the People Act, 1951,' seems to . be that any
matter
which has the effect of vitiating an election should be brought
up' only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.
Undl:r the election law, the only
significance which the rejection
of a nomination
paper has,
consists in the fact that it can be used as a ground to call the
election in question.
_Article 329 (b) was apparently enacted to
preS<:ribe the manner in which and the stage at which this
ground, anel other grounds which inay be raised under. the \aw to
call the election in question., could be urged.
It follows by necessary implication from the language of this provision that those
grounds cannot be urged in any . other manner, at any other stage
and before any other court. If tl1e grounds oh .which. an election
can be called in question could be raised at an earlier stage and
errors, if any, are rectified, there will be no meaning in enacting
a provision like article 329 (b) and in setting up · a special
tribunal.
Any other meaning ascribed to the words used in the
article would lead to anomalies, which the Constitution
col,lld
not have contemplated, one of them being that canflicting views
may be expressed by the High Court at the pre-polling stage and
by the election tribunal whicli is to be

## Text

_Characters 0–39,336 of 52,164. This is a partial read: ask again with offset=39336 for what follows._

1952
Jan. 21.
218
SUPREME COURT REPORTS
N. P. PONNUS\V AMI
ti.
RETURNING OFFICER, NAMAKKAL
CONSTITUENCY and OTHERS
[1952J
UNION OF INDIA and STATE OF MADHYA
BHARA T-INTERVENERS.
[PATANJALI SAsTRr C.J., FAZL Au, MEHR CHAND
MAHAJAN, MuKHERJEA, DAs and
CHANDRASEKHARA ArYAR JJ.J
Constitution of India Arts. 226, 324 to 329-Representation of the
People Act, 1951, ss. 36, 80--Election to Legislatures-Rejection of
nomination paper-Applicati-on to High Court for writ of certiorari
-Maintainability-..furisdiction
of
High
Court-Meaning
of
"election" and "questioning election"-Poli"cy of Legislature
with
regard to elections-Special remedies.
Article 329 (b) of the Constitution of India provides that
"no election to either House of Parliament or to the House or
either House of the Legislature of a State shall be called in question except by an election petition presented to such authority
and in such manner as may be provided for, by or under any law
made
by
the
appropriate Legislature."
The Representation of
the People Act, 1951, which made detailed provisions for election
to the various Legislatures of the country also contains a· provi~
sion (sec. 80) that no election shall be called in question except
by an election petition presented in accordance with the provi~
sions of the Act.
The appellant\ who was a candidate for election to the Legislative Assembly of the State of Madras_ and whose nomination
paper was rejected by the Returning Officer, applied to the High
Court of Madras under article. 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:
Held by the Full Court (PATANJALI SASTRI, C. J., FAZL Au,
MAHAJAN,
MuKHERJEA,
DAS
and
CHANDRASEKHAR.A
AiYAR JJ.)
that in view of the provisions of articles 329 (b) of the Constitution and sec. 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 word uelection" 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
,_
'·
4'
..
..
S.~.R.
SUPREME COURT REPORTS
219
narrow sense it is used to mean the final selection of a candidate
· 1952
which may embrace the. ·result of the poll when there is polling
or a particular candidate being returned unopposed when there
is
N. P. Ponnuno poll. In the wide sense, the word is used to connote the entire
f.Wam1
process culminating in a candidate being declared elected
and it"
.v.
is in this wide sense that the word is used in Part XV of the Returmng Officer,
Constitution in which article 329 (b) occurs.
Namak,k,al
Constituency a1ld
The scheme of Part XV of the Constitution and the RepreOthers.
sentation of the People Act, 1951,' seems to . be that any
matter
which has the effect of vitiating an election should be brought
up' only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.
Undl:r the election law, the only
significance which the rejection
of a nomination
paper has,
consists in the fact that it can be used as a ground to call the
election in question.
_Article 329 (b) was apparently enacted to
preS<:ribe the manner in which and the stage at which this
ground, anel other grounds which inay be raised under. the \aw to
call the election in question., could be urged.
It follows by necessary implication from the language of this provision that those
grounds cannot be urged in any . other manner, at any other stage
and before any other court. If tl1e grounds oh .which. an election
can be called in question could be raised at an earlier stage and
errors, if any, are rectified, there will be no meaning in enacting
a provision like article 329 (b) and in setting up · a special
tribunal.
Any other meaning ascribed to the words used in the
article would lead to anomalies, which the Constitution
col,lld
not have contemplated, one of them being that canflicting views
may be expressed by the High Court at the pre-polling stage and
by the election tribunal whicli is to be an independent body, at
the stage when the matter is brought up before it.
Therefore,
questioning the rejection of a nomination paper is "questioning.
the election" within the meaning of article 329 (b) of the Constitu-
\ tion and sec. 80 of the Representation of the People Act, 1951.
Having regard to the important functions which
tlie
legislatures have to perform in democratic countries, it has always
been recognized to be a matter of first importance tliat elections
should be concluded as early as possible according to time S<:hedule
and all controversial matters and all disputes arising out of elections should be postponed till after tlie elections are over, . so
tliat the election proceedings may not be unduly retarded or
protracted. In conformity with this principle, the sclieme of the
election law in this country as well as in England is that no
significance should be attaclied to anything which does not affect
the "election"; and if any irregularities are committed while, it is
in progress and they belong to the category or class which, under
the law by which elections are governed, would have the effect
of vitiating the "election" and enable the persons . affected · rn
8:.....3 S. C. India/71
~
220
SUPREME COURT REPORTS
[1952]
1952
call it in
qu~stion, they should be brought up before a special
tribunal by means of an election petition and not be made
the
N. P: Ponnu·
subject of a dispute before any
court while the election is in
swami
progress.
Returning Of/k.r,
Th
. h
J
d"d
f
1 ·
·
e rig t to vote or stan
as a can i ate
or e ection ts not a
N, v.kkal
civil right but is a creature of statute or specjal law and n1ust be
Co ::a c an J subject to the limitations imposed by it.
Strictly speaking,
it
ns ~,:; Y
' is the sole right- of the Legislature to examine and determine all
'S.
matters relating to the election of its own members, and if the
legislature takes it out of its own hands and vests in a special
tribunal an entirely new and unknown jurisdiction,
that
special
jurisdiction should be exercised in accordance with the law which
creates it.
Where a right or liability is created by a statute which gives
a special remedy for enforcing it, the remedy provided by that
statute only must be availed of.
Wolverhampton New Water 'Works Co. v. Hawkesford [6 C. B.
-(N. S.) 336], Neville v. London Express Newspaper Limited ([1919]
A. C. 368), Attorney-General of Trinidad and Tobago v. Gordon
·Grant & Co. ([1935] A. C. 532), Secretary of State v. Mask & Co.
( 44 C. W. N. 709), Hurdutrai v. Official Assignee of Calcutta (52
C. W. N. 343),
Theberge v. Laudry (1876, 2 App. Cas. 102)
referred to.
Judgment of the l-Iigh Court of Madras affirmed.
CIVIL
APPELLATE
JuRISDICTioN : Case
No. 351 of
1951.
Appeal
under
article 132
of the Constitution
from the Judgment and Order of the High Court of
Judicature at Madras
(Subba Rao
and
Venkatarama
Ayyar JJ.) dated 11th December, 1951, in Writ Petition No. 746 of 1951. The facts of the case and arguments of the counsel are set out in detail in the judgment.
N. Rajagopal Iyengar, for the appellant.
R. Ganapathi Iyer, for the 1st respondent.
M. C. Setalvad, Attorney-General for India ( G. N.
Joshi, with him) for the Union of India.
K. A. Chiklle, Advocate-General of Madhya Bharat.
-(G. N. foshi; with him) for the State of Madhya Bharat.
1952. January 21.
Faz! Ali J.
delivered
as follows.
Patanjali Sastri C. J."Mahajan,
Das and Chandrasekhara Aiyar JJ.
agreed.
.Ali J.
Judgment
Mukherjea,
with Faz!
-
..
S.C.R.
SUPREME COURT REPORTS
221
FAZL Au J.-This is an appeal from an order of the
Madras High Court dismissing the petition of the
.appellant praying for a writ of certiorari.
The appellant was one of the persons who had filed
nomination papers for election to the Madras Legislative
Assembly fro111 the Namal<lkal Constituency in Salem
district.' On the 28th November, . 1951, .the Returning
Officer for that constituency took ·up ·for scrutiQy
the
nomination papers filed by the various candidates and
on the same day he rejected the· appellant's nomination paper on certain groun~s w~ich 1 need' not be set
out as they are .not material to the point raised in this
aweal. . The appellant thereupon moved the High
Court under article 226 of the Constitution praying
for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to
dim:t the Returning Officer to include his name in the
list of valid nominations to be published.
The High
Court dismissed
the
appellant's
application
on
the.
ground that it had no jurisdiction to interfere with the
order of the Returning Officer by reason of the provisions of article 329(b)
of
the
Constitution.
The
:appellant's contention in this appeal is that the view
.expressed by the High Court is not
correct, that the
jurisdiction of the High Court
is
not affected by
article 329 (b) of the
Constitution and that he was
entitled to a writ o£ certiorari in the circumstances of
the case.
Broadly speaking, the arguments
on
whi~h the
judgment of the High Court is assailed are two-fold :-
(1) that the concl~sion 'arrived
at
by the High
Court does not follow from the language of article 329
(b) of the Constitution, whether that article is . read
by itself or along with the other articles in Part XV of
the Constitution : anrl
(2) that the anomalies which will arise if the construction put by the High Court on article 329 (b) is
accepted, are so startling that the courts should lean
in favour of the construction put forward on behalf of
the appellant.
·
29
1952
N. P. Ponnu·
swami
v.
-Returning Officer,
Namakkfd
Constituency and
. Others.
Fazl Ali f.
222
SUPREME COURT REPORTS
[1952J
1952
The first argument which turns on the
con~truction
of article 329(b) requires serious consideration, but I
N. P. Ponnuthink the secon.d argument can be disposed of briefly
Jtuami
T.
at the outset.
It should be stated that what the appelReturning Officer, !ant chooses to call anomaly can be more appropriately
Namakkal
described as hardship or prejudice
and
what
their
Constituency and
nature will be has been stated in forceful language by
Otlii:rs.
Faz/ Ali /. ·
Wallace J. in Sarvothama Rao v. Chairman, Municipal
Council, Saidapet(') in these words :-
'
"I am quite clear that any post-election remedy is
wholly inadequate to afford the relief which the petitioner seeks, namely, that. this election, now published
be stayed, until it can be held with himself as
~ candidate.
It is no consolation to tell him that he can stand
for some other election.
It is no remedy to tell him
that he must let the election go on and then have it set
aside by petition and have
a fresh election ordered.
The fresh election may be under
altogether different
conditions and may bring forward an array of fresh
candidates. The petitioner can only have
his
proper
relief if the proposed election without him
is
stayed
until his rejected nomination is restored, and hence an
injunction staying this election
was absolutely necessary, unless the relief asked for was to be denie<l him
altogether in limine. In most cases
of this kind no
doubt there will be difficulty for the aggrieved party
to get in his suit in time before the threatened wrong
is committed ; but when he has succeeded in so doing,
the Court cannot stultify itself by allowing the wrong
which it is asked to prevent to be actually consummated while it is engaged in trying the suit."
These observations however represent only one side
of the picture and the same learned
Judge presented
the other side of the picture in a subsequent case [Desi
Chettiar v. Chinttasami Chett1ar(2 )] in the
following
passage:-
"The petitioner is not without
his remedy.
His
remedy lies in an election. petition which we understand he has already put in. It is
argued for him
(1) (1924) IL.R. 47 Mad. 585. at 600.
(2) (1928) A.I.R. Mad. 1271 at 1272.
-
...
-
S.C.R.
SUPREME COURT REPORTS
223
that that remedy which 'merely allows him to have set
.aside an election once held is not as efficacious as the
one which .would enable him to stop the. election altogether'; and certain observations at p. 600 of
Sar--
voihama Rao v. Chairman, Municipal Council, Saidapet(1) are quoted.
In the first place, we · do not see
how the mere fact that thi: petitioner cannot get the
election stopped and has his remedy · only after
it is·
-0ver by an election petition, will in itself confer on
him any right to obtain a writ. In the second place,
these observations were directed
to the
consideration
Qf the propriety of an injunction in a civil suit, a
matter with which we are not here concerned. And
finally it may be observed that
these
remarks
were
made some years ago when the practice of individuals
coming forward to · stop elections in
order that their
own individual interest may be safeguarded was not so
common. It is clear that there is another side of the
question to be considered, namely,
the i inconvenience
to the public administration of having elections and
the business of "Local Boards held up while individuals
prosecute their individual grievances.
We
understan~
the election for the elective seats
in
this Union has
been held up since 31st May because of this petition,
the result being that the electors
have
been unable
since then to have any representation
on
the Board,
and .the Board is functioning, if indeed it is functioning, . with
a
mere nominated fraction
of its total
strength;
and
this state of affairs the petitioner proposes to have continued until his own personal griev-
;;mce is' satisfied."
These obser¥ations which were made in
regard to
e1ections to Local Boards will apply with greater force
to elections to legislat\Jres, because it does not require
much argument to show that in a country with ·a
Aemocratic constitution in which the legislatures have
to play a very important role, 1t will lead to serious
consequences if the elections are unduly protracted or
obstructed .. To this. aspect of the matter I shall have to
.adv~rt later, but , it .is sufficient for the present purpose
(1) ( 1924) I.L.R. 47 Mad. 585 at 600.
1952
N. P. Ponnuswami
v.
Returning Officer,
· Namakkal
.
Constituency and
Others.
Fazl Ali /.
\
/
1952
N. P. Ponnuswami
v.
Returnint Of!icet,
Namakkal
Constituency and
Others.
Faz/ Ali/.
224
SUPREME COURT REPORTS
[1952}
to state
firstly
that in England the
hardship and
inconvenience which rnay be suffered by an individual
candidate has
not
been
regarded as
of sufficient
weight to induce Parliament
to
make
provision for
immediate relief and the aggrieved candidate
has
tc>
wait_ until after the election to challenge
the validity
of the rejection of his nomination paper, and secondly,
that the question of hardship or inconvenience is after
all . only a secondary question, because if the construction put by the High Court on article 329 (b) of
the
Constitution is found to be correct, the fact that such
construction will lead to hardship
and
inconvenience
becomes irrelevant.
Article 329 is the last article in
Constitution the heading of which
it runs as follows :-
Part XV
of
the
is "Elections", and·
"Notwithstanding anything in this Constitution--
( a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to
such constituencies made
or
purporting to be made
under article 327 or article 328, shall not be called in
question in any court ;
(b) no election to either House
of Parliament or
to the House or either House of the Legislature of a
State shall be called in question except by
an election
petition presented
to such
authority
and
in such
manner as may be provided for, by, or under any law
made by the appropriate Legislature."
In construing this article, reference
was
made
by
both parties in the course of their arguments to the
other articles in the same Part, namely, articles 324,
325, 326, 327 and 328.
Article 324 provides for the
constitution and appointment of an Elecetion Commissioner to superintend, direct and
control elections
to
the legislatures ; article 325
prohibits
discrimination
against electors on the ground of religion, race,
ca<te
or sex ; article 326 provides for adult suffrage ; article
327 empowers Parliament to
pass laws
making
provision with respect
to
all
matters relating to, or in
connection with, elections to
the
legislatures, subject
•
S.C.R.
SUPREME COURT REPORTS
225
to the provisions of the Constitution ; and article 328
is a complementary article giving power to the State
Legislature to make provisions with respect
to all
matters relating to, or in connection with, elections to
the State
Legislature.
A notable
difference
in the
language used in articles 327 and 328 -on the one hand,
and · article 329 on the other, is that while the first
two articles begin with the words "subject to the pro.
visions of this Constitution", the last article begins
with -the words "nothwithstanding anything in this
Constitution."
It was conceded at the
bar that the
effect of this difference in language is that whereas
any law made by Parliament under article 327, or by
the State Legislatures' under article 328, cannot exclude
_ the jurisdiction of the High Court under article 226 of
the Constitution, that jurisdiction is excluded in regard
to matters provi<}ed Jor in article 329.
Now, the main controversy in this appeal centres
round the meaning of the words "no election shall be
called in question except by an election petition'~ in
article 329(b ), and the point to be decided is whet~er
questioning the action of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the words, "no election shall be called
in question." The appellant's case is that
questioning
something which has happened before a candidate is
dedared elected is not the same thing as questioning
an election, and the arguments advanced on his bebalf in support of this construction were these :-
(1) That the word "election" as used
in
article
329(b) means what it
normally · and etymologically
means, namely, the result of polling or ~he final selection of a candidate ;
• (2) That
the
fact
that
an
election
petition
can be filed only after
polling is over
or after
a
candidate is declared elected,
and
what
is
normally called in
question by
such
petition
is
the
final result, bears out the contention that the word
· "election" can have no other meaning
in article
329
(b) than the result of polling or the final selection of a
candidate ;
· -
1952
N. P. Ponnuswami
v.
Returning Otficn-,
Namakkal
Constituency and
Others.
Fnl Ali/.
226
SUPREME COURT REPORTS
[1952]
1952
(3) That the words "arising out of or in connection
with" which are used in article 324(1) and the words
N. P. Ponnu-
"with respect to all matters relating to, or in connecswam1
tion with" which are used in articles 327
and
328,
v.
Returning Officer, show that the framers of the Constitution knew that it
Namakkal
was necessary to use different languages when referring
Constituency and
respectively to matters which
happen
prior
to
and
Others.
·
after the result of polling, and if they
had intended
Fazl Ali /.
to include the rejection of a nomination paper within
the ambit of the prohibition contained
in article 329
(b) they would have used similar language in that
article ; and
( 4) That the action of the Returning Officer in rejecting a nomination paper
can be questioned before
the High Court under
article 226 of . the Constitution
for the following
reason :-Scrutiny
of
nomination
papers and their rejection .are provided for in section 36
of· the Representation of the People Act, 1951. Parliament has made this provision in exercise of the powers
c0nferred on it ·by article
327
of
the
Constitutio11
which is "subject to the provisions of the Constitution".
Therefore, the action of the Returning Officer is subject
to the
extraordinary jurisdiction of the High Court
under article 226.
These arguments appear . a~ first sight to
be quite
impressive, but in my opm1on
there
are
weightier
and basically more important arguments in support of
the view taken by the High Court.
As we have seen,
the most important question for determination is
the
meaning to be given
to
the
word
"election"
in
article 329 (b).
That word has by
long usage
in
<:onnection 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
-
'\
I
J
l
-(
:S.C.R.
SUPREME COURT ~EPORTS
227
1952
N. P. Ponnuswami
v.
·elected. In Srinivasalu v. 1;..uppuswami(1), the learned
Judges of the Madras High Court after examining the
question, expressed· the opinion that : the term "election" may be taken to· embrace the whole
procedure
where by an "elected member" is returned, whether
or
not it · be found necessary to take a poll. With this
·view, my brother, Mahajan J. expressed his
agreement
.in Sat Narain v. Hanuman Pramd(2) ; and I also find
myself iJ1 agreement with it. It seems to me that the
word "election" has been used
in
Part XV of the
·Constitution in the wide sense, that is to say, to con-
.note the entire procedure to be gone through to return
.a candidate to the legislature. The use of the expresReturning Officer,
Namakkal
Constituency and
Othe1·s.
.. sion "conduct of elections" in article 324 specifically
points to the wide meaning, and that meaning can also
·be read consistently into tile other provisions
which
•occur in Part XV including article 329 (b). That the
·word "election" ·bears this wide meaning whenever we
· :talk, of elections in a democratic country, is borne out
by the fact that in most of the books on the subject
:and in several cases dealing . with the matter, one of
the questions mooted is, when the election begins.
The
-subject is dealt with
quite concisely in Ha1sbury's
Laws of England in the following passage(3) under the
.beading "Commencement of the Election" :-
"Although the first formal step in every election is
the issue of the writ, the election is considered for some ·
_purposes to begin at an earlier date. It is
a question
d fact in each case when an election begins in such a
way as to make the parties concerned responsible for
breaches of election law, the test being whether the
.contest is "reasonably imminent".
Neither the issue of
:the writ nor the publication of the notice of election
·can be looked to as fixing the date when an election
begins from this point of view. Nor, again, does the
·nomination day· afford any criterion. The election. will
usually begin at least earlier than the issue of the writ.
'The question when the election begins . must be care-
( 1) (1928) A.LR. Mad. 253 at 255.
(2) (1945) A.LR. Lah. 85.
(3) See page 237 of Halsbury's Laws of England, 2nd edition,
Volume 12.
Faz/ Ali f.
1952
N. P. PonnuJWami
v.
Returning Officer,
Namak._k._al
( onstituency and
Ot,hers.
Fazl Ali ].
228
SUPREME COURT REPORTS
[1952]
fully distinguished from that as to when "th~ conduct
and management of" an election may be said to begin.
Again, the question as to when
a
particular person
commences to be · a candidate is a question to be considered in each case."
The discussion in this passage makes it
clear
that
the word "election" can be and has been appropriately
used with reference to the entire process which consists.
of several stages and embraces many
steps, some of
which may have an important bearing on the result of
the process.
The next important question to be
considered
1s
what is meant by the words "no
election
shall be
called
in
question".
A
reference to any treatise
on elections in England will show that an election proceeding in that country is liable to be assailed on very
limited grounds, one of them being the improper rejection of a nomination paper. The law with which we
are concerned is not materially different, and we find
that in section 100 of the Representation of the People
Act, 1951, one of the grounds for declaring an election
to be void is the improper rejection of a nomination·
paper.
The question now arises whether the law of elections
in this country contemplates that there should be two·
attacks on matters connected with election proceedings,
one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226
of the Constitution (the ordinary jurisdiction
of
the·
courts having been expressly excluded), and another
after they have been completed by means of an elec-·
tion petition.
In my opinion, to affirm such a position
would be contrary to the scheme of Part XV of the·
Constitution and the Representation of the People Act,.
which, as I shall point out lateq seems to be that any
matter which has the effect of
vitiating an election
should be brought up only at the appropriate stage in
an appropriate manner before a special tribunal
and·
should not be brought up at
an
intermediate stage·
before any court. It seems to me that under the elec-·
tion law, the only significance which the
rejection of
,.
-
"
'
\
-~
I
' ·'
S.C.R.
SUPREME COURT REPORTS
229
a nominatiorl: paper . has
consists in the fact
that
it
1952
can be
used as a
ground to
call the
election
m
question.
Article 329(b) was apparently
enacted
to
N. ~~::riu··
prescribe the manner in which and the stage at which
v.
this ground, and other. grounds which may be raised Returning Office1',
under the
law to call
the electio11
in question,
N~makkal d
could be urged. I think it follows
by necessary imConsigu;ncyan
plication
from
the
language
of this
provision
1 ers.
that those grounds cannot be urged in any other
Faz/ dli /,·
manner, at any other stage and before any other court.-
If the grounds on which an election can be called .irr
question could be raised at an earlier stage and errors,,
if any, are rectified, there will be no meaning in enact-'
ing a provision like article 329(b) and in setting' up a
special tribunal. Any other meaning ascribed
to
the
words used' in the article would lead
to
anomalies,
which the Constitution could not
have · contemplated,,
one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by
the election tribunal, which is to be an independent
body, at the stage when the matter is brought up
before it.
I think that a brief examination of the scheme of
Part XV of the Constitution and
the
Representation.
of the People Act, 1951, will show that the construction I have suggested
is
the
correct one.
Broadly
speaking, before an election machinery can be brought
into operation, there are three requisites which ,requii;-e
to be attended to, namely, (1) there should be a set of
laws and rules making provisions with respect to
all
matters relating . to, or ·in
connection with, elections,
and it should be decided as to how these laws and rules
are to be made; (2) there should be an executive
charged with the duty of securing the due conduct of
elections; and (3) there should be a judicial tribunal
to deal with disputes arising out of or in connection
with elections.
Articles 327 and 328 deal with the first
of these requisites, article 324 with
the second
ai1d
article 329 with the third requisite.
The
other two
articles in Part . XV, viz., articles 325 and 326, deal
with two matters of principle to which the
Consti~u
tion-fotmers have
attached
much
importance.
They
30
230
SUPREME COURT REPORTS -
(1952]
·1952
are :-( 1)
prohibition against discrimination
in the
preparation of, or eligibility
for
inclusion m,
the
N. P. Ponnuelectoral rolls, on grounds of religion, race, caste, sex
swatnt
v.
or any of them ; and (2) adult suffrage. Part XV of
Returning Officer, the Constitution is really a code in itself providing
Namakkal
the entire ground-work for enacting appropriate
laws
Constituency and
and setting up suitable machinery for the conduct of
Others.
Faz/ Ali f.
elections.
The Representation of the· People Act, 1951,
which
was passed by Parliament
under
article 327 of the
Constitution, makes detailed provisions
in
regard to
all matters and all stages connected with ·elections to
the various legislatures in this country.
That Act is
divicjed into 11 parts, and it is interesting to see the
wide variety of
subjects they
deal
with.
Part II
deals with "the qualifications and disqualifications for
membership'', Part III deals with the notification of
General Elections, Part IV provides for the
administrative machinery for the conduct
of
elections,
and
Part V makes provisions for the actual conduct
of
elections and deals with such matters as
presentation
of nomination papers, requirements of a valid nomination, scrutiny of nominations, etc., and procedure for
polling and counting of
votes.
Part VI deals with
disputes regarding
elections
and
provide~ for
the
manner of presentation of election petitions,
the constitution of election tribunals and the trial of ekction
petitions. Part VII outlines the various
corrupt and
illegal practices which may affect
the
elections, and
electqral offenc·es.
Obviously, the Act
is a
self-contained enactment so
far as
elections
are concerned,
which means that whenever we have to ascertain the
true position in regard to any matter connected with
elections, we have only to look at the Act and the rules .
made thereunder. The provisions of the Act which are
material to the present
discussion
are
sectioru 80,
100, 105 and 170, and the provisions of Chapter I.I of
Part IV dealing with the form of election petitions,
their contents and the reliefs which may be sought in
them. Section 80, which is drafted in almost the same
language as ·article 329(b), provides that "no election
shall be called
m
question
except by an election
'•
..
\..
S.C.R.
SUPR~ME COURT REPORTS
231
1952
N. P. Ponnuswami
v.
petition presented in accordance with the provisions of
this Part". Section 100, as we have already seen, provides for the grounds on which an election may be
,called in question, one of which is the imriroper rejection of a nomination paper.
Section 10) says that
"every order 'of the Tribunal made under this Act shall
be final and conclusive".
Section 170 provides that
"no civil court shall have jurisdiction to question
the legaiity of any action taken or of any decision
given by the Returning Officer or by any other person
appointed under this. Act in ·connection with an election." These are the roam provisions regarding election matters being judicially dealt with, and it should
be noted that there is no provision anywhere
to
the
effect that anything connected with elections can
be
Returning Officer~
N11mak,k,al
Constituency and
Others.
· questioned at an intermediate stage.
It is now well-recognized that where a right of liability is created by a statute which gives a special
remedy for enforcing it, the remedy provided by that
statute only must be availed of. This rule was stated
with great clarity
by
Willes J.
in
WoltJerhampton
-New Water Works Co. v. Hawkesford( 1 ) in the following passage :-
"There are three dasses of cases in which a liability
may b~ established
founded
upon statute.
One is,
where there was a liability existing at common
law,
and that liability is affirmed by a statute which
gives
a special and , peculiar form of remedy different from
the remedy which existed at
common
law; 'there,
unless the statute contains words which
expressly
or
by necessary
implication
exclude
the
co,nimon law
remedy, the party suing has his election to pursue,
either that or the statutory remedy. The second class
of cases is, where the statute gives the right to sue
merely, but provides no particular form ·of
remedy~
there,_ the party can only proceed by action . at common law.
But
there is a third class, tJiz,, where a·
liability not existing at common law is created
by a
statute which at the same time gives a special and
particular remedy for enforcing it. . . . . . . . . . The remedy
provided by the statute must be followed, and it is not
(l) 6 C.B. (N.S.) 336, 356.
'
Fazl Ali/.
1952
N. P. Ponnustvami
v.
232
SUPREME COURT REPORTS
[1952]
competent to the party
t~ pursue the course
applicable to cases of the second class.
The form given by
the statute must be adopted and adhered to."
/.?.<turning Officer,
Namakkal
l~'(Jnstztuency and
Other;.
The rule laid down in this passage was approved
by the House of Lords in
Neville
v.
London
Express Newspaper Limited(') and has been
reaffirmed
by the Privy Council
in
Attorney-General
of
Trinidad and Tobago
v.
Gordon Grant & Co.(')
and
Secretary of State v. Mask & Co.(3 ) ; and it has also been
held to be equally applicable to enforcement of rights :
see Hurdutrai
v.
Official
Assignee
of
Calrntta(•).
That being so, I think it will be a
fair
inference
from the provisions
of
the
Representation
of the
People Act to state that the Act provides for only one
remedy, that remedy being by an election petition to
be presented after the election is over, and there is no
remedy provided at any intermediate stage.
.Fa~I Ali f.
It was argued that since the Representation of the
People Act was enacted subject
to
the provisions of
the Constitution, it cannot bar the jurisdiction of the
High Court to issue writs under article 226
of
the
-Constitution.
This
argument· however
is
completely
shut out by reading the Act along with article 329(b).
It will be noticed that the language used in that article
and in section 80 of the Act is almost identical,
with
1:his difference only that the article is preceded by the
words "notwithstanding anything
in
this
Constitution". I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with
any matter which may arise while the elections are in
progress.
It may be stated that section 107(1) of the Representation of People Act, 1949 ( 12 & 13 Geo. 6, c. 68) in
England is drafted almost in the same
language
as
article 329(b). That section runs thus:
"No parliamentary election and no return to Parliament shall be questioned except by a petition complaining of <tll undue election or undue return (hereinafter referred to as a parliamentary
election
petition)
'.Presented in accordance with this Part of this Act."
.
(1) [1919] A.C. 368.
(3) (1940) 44 C.W.N. 709.
{?) [1935] A.C. 532.
( 4) (1948) 52 C.W.N. 343, 349.
,..
+
t •
•
':S.C.R.-
SUPREME COURT REPORTS
233
.
1$52
N. P. Ponnu-·
swami
v.
It appears that similar language was used
in
the
·earlier statutes, and it is noteworthy that it has never
been held in England that the improper rejection of a
nomination paper can be the
subject of
a writ of
certiorari or mandamus. On the other hand, it was
conceded at the bar that. the question of improper rejection of a.nomination paper has always been brought
up in that country before the appropriate
tribunal
by
means of· an election petition after the conclusion· of
the election. It is true that there is no direct dedsfon
holding ·that the words used in the' relevant provisions
exclude the jurisdiction of the High Court to issue ap_propriate prerogative writs at an intermediate stage of
the election, but the total absence of any such decision
can be accounted for only on the view that the provi-
::1ions in question have been generally understood'to have
that effect.
Our attention .was drawn to rule 13 ot the
rules appended to the Ballot Act of 1872 and a similar
rule in the Parliamentary
Elections
Rules
of _ 1949,
providing that the decision of the Returning Officer
<lisallowing an objection to a nomination paper· shall
be final, but allowing
the same
shall be subject to
reversal on a petition questioning the election
or return.
These
rules
however do not affect the main
argument.
I think it can be Iegitim_ately · stated that
1f words similar to those used in article 329 (b) have
.been consistently treated in England as words apt to
exclude the jurisdiction of the CQJtrts
including the
High Court, the same consequence must follow from
the words used in article 329(b) of the Constitution.
fhe
words
"notwithstanding
anything
in
this
Constitution" give to that article the same wide and
binding effect as a statute passed by a sovereign legislature like the English Parliament.
Returning Officer,
Namakkal
Constituency and
Others:
It may be pointed out that article 329(b) must be
. read as complimentary to clause (a) of
that
;μ-tide.
Clause (a) bars the jurisdiction of
the courts with
regard to such law as may be made under articles_327
and 328 relating to the delimitation of constituencies
or the allotment of seats
to
such
constituencies. . It
was conceded before us that article 329(b) ousts the
· jurisdiction of the courts
with
regard
to
matters
Fflzl Ali /.
234
SUPREME COURT REPORTS
[1952].
1952
ansmg between the commencement of the polling and
the final selection. The question which has to be asked
N. ~~::.?nuis what conceivable reason the legislature could
have
v.
had to leave only m:itters connected with
nominations
Returning Officer, subject to the jurisdiction of the High Court
under
Namak/r..ol
article 226 of the Constitution. If Part XV
of
the
Constituency and
Constitution is a code by itself, i.e., it creates rights.
Others.
d
"d
f
h .
fo
b
. l
an
prov1 es
or t e1r
en rcement
y
a
specia .
Fazl Ali /.
tribunal to the exclusion of all courts includ:ng the
High Court, there can be no reason for
assuming that
the Constitution left one small part of the election process to be made the subject-matter of contest
before.
the High Courts and thereby upset the time-schedule
of the elections.
The more reasonable view .seems to
be that article 329 covers all "electoral matters".
The conclusions which I have arrived at may
be
summed up briefly as follows : -
( 1)
Having regard to the
important functions.
which the legislatures have to perform in democratic
countries, it has always been
recognized
to
be
a:
matter of first
importance that
elections
should be
concluded as
early
as
possible according to time
schedule and all controversial matters and all disputes
arising out of elections should be postponed till after
the elections are over, so that the election proceedings
may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme
of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any
irregularities are committed while it is in progress and
they belong to the category or class which, under the
law by which elections are governed, would have the
effect of vitiating the "election" and enable· the person
affected to call it in question, they should be brought
up before a special tribunal by means of an election
petition and not be made the subject of a
dispute
before any court while the election is in progress.
It will be useful at this stage to refer to the decision
of the Privy Council in Theberge
v. Laudry('). The
. (1) (1876) 2 App. Cas. 102.
-
-
(
.