# JNDIRA NEHRU GANDHI (SMT.) v. RAJ NARAIN & ANR

- **Citation:** [1978] 2 S.C.R. 405
- **Court:** Supreme Court of India
- **Decided:** 1975-06-24
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jndira-nehru-gandhi-smt-v-raj-narain-anr-7390
- **Pages:** 14

## Headnote

... .,
JNDIRA NEHRU GANDHI (SMT.)
v.
RAJ NARAIN & ANR.
June 24, 1975
(V. R. KRISHNA IYER, VACATION )UDGE]
Representation of the Peuple Act, 1951, S.116B(2)-Stay of t'lectio1l Judgment and order-Judge-Power-Din1ensions of Judge power to stay-Differ-
£·nce between ext:cutive discrerion and judlcial disc.:rt'tion,
explained-·Cogni~a
bility of non-legal arguments in such cases-Equity and ground of "unclean
luuul~"--Cuurts cannot go into the nierit,s· of the case at the stage of 1.tranti11g
stay-Balance of convenience, public justice etc. are relevant con:,iderationsPrecedents of pre-1966 Election law ure of no value to post-1966 cases of conditional !.tay--/llature of "type design" stay orders and their value-Legal effect
of a stay order in general and in particular, in the instant case, as a Minister or
Pri111e Minister-Power to ask for a review of provisional orders.
In the General Parliamentary Elections of 1971, the appe1lant was declared
as a successful candidate from the Rae Bareli Constituency in LTttar Pradesh.
She won the election by a margin of 1,11,810 votes over her nearest rival Sri
A
B
c
Raj Narain.
Sri Raj Narain, respondent No. I, who was sponsored by the
Samyukta Socialist Party filed an election petition u/s 80 r/w S.100 of the
Representation of the People Act, 1951 to challenge the election of the successD'
ful candidate. A learned single judge of the Al1ahabad High Court upheld the
challenge on two grounds rejecting the other grounds of challenge. The learned
judge also granted an absolute 20 days' stay. The appellant moved this Court,
challenging the 'unseating' verdict against her by the High Court. The appellant <l'!so sought "absolute stay" of
the judgment and
order
under appeal.
Respondent No. I filed cross-appeals against the said judgment rejecting the
grounds of challenge, except n.vo.
Allowing the petition and granting the stay in terms, the Court
E
HELD : l. Whi1e the right to appeal is statutory, the power to stay is discretionary.
But judicial discretion-indeed, even executive discretion-cannot
run riot.
The former though plenary, is governed in its
e~ercise by sound
guidelines and courts look for light, inter alia, from practice and precedent
without however being hide-bound mechanically. Judicial power is dynamic,
forward looking and socially luscent and aware.
(407 H, 408 A]
2. The court decides forensic questions \Vithout getting embroiled in nonF
legal disputes working as it does in a sound-proof system of sorts. The Court
is the quiet of the storm centre and views with an equal eye, the claims on
each side, taking judicial note of the high issues and balance of convenience in
the wider context. The judicial approach is to stay away from political thickets
and new problems with institutionalised blinkers on, so long as the court
methodology remains the same. Arguments about political sentiment, political
propriety and moral compulsion though relevant at other levels, fall beyond
the conventional judicial orbit and the courts have to discrirninately 5hift them
while deciding on the grant of stay pending an appeal. If national crises and
G
democratic considerations, and not mere balance of convenience and interests
of justice, were to be major inputs in the Judge's exercise of discretion, systematic
changes and shifts in judicial attitude may perhaps be needed.
But sitting in
time-honoured forensic surroundings the Supreme Court is constrained to judge
the issues before it by canons sanctified by the usage of this Court.
[408 C-fi]
3. The preliminary objection of "unclean hands" not entitling the petitioner/
appel1ant to seek the equitable relief of stay is not founded on facts.
The stay
order does not state that it was to enable the election of a different leader that
H
time was granted. The petitioner could not be faulted as having played false
to the Court since the Congress Parliamentary Party convoked subsequent to
the judgment has full-bloodedly plumped in favour of her remaining in office

## Text

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... .,
JNDIRA NEHRU GANDHI (SMT.)
v.
RAJ NARAIN & ANR.
June 24, 1975
(V. R. KRISHNA IYER, VACATION )UDGE]
Representation of the Peuple Act, 1951, S.116B(2)-Stay of t'lectio1l Judgment and order-Judge-Power-Din1ensions of Judge power to stay-Differ-
£·nce between ext:cutive discrerion and judlcial disc.:rt'tion,
explained-·Cogni~a
bility of non-legal arguments in such cases-Equity and ground of "unclean
luuul~"--Cuurts cannot go into the nierit,s· of the case at the stage of 1.tranti11g
stay-Balance of convenience, public justice etc. are relevant con:,iderationsPrecedents of pre-1966 Election law ure of no value to post-1966 cases of conditional !.tay--/llature of "type design" stay orders and their value-Legal effect
of a stay order in general and in particular, in the instant case, as a Minister or
Pri111e Minister-Power to ask for a review of provisional orders.
In the General Parliamentary Elections of 1971, the appe1lant was declared
as a successful candidate from the Rae Bareli Constituency in LTttar Pradesh.
She won the election by a margin of 1,11,810 votes over her nearest rival Sri
A
B
c
Raj Narain.
Sri Raj Narain, respondent No. I, who was sponsored by the
Samyukta Socialist Party filed an election petition u/s 80 r/w S.100 of the
Representation of the People Act, 1951 to challenge the election of the successD'
ful candidate. A learned single judge of the Al1ahabad High Court upheld the
challenge on two grounds rejecting the other grounds of challenge. The learned
judge also granted an absolute 20 days' stay. The appellant moved this Court,
challenging the 'unseating' verdict against her by the High Court. The appellant <l'!so sought "absolute stay" of
the judgment and
order
under appeal.
Respondent No. I filed cross-appeals against the said judgment rejecting the
grounds of challenge, except n.vo.
Allowing the petition and granting the stay in terms, the Court
E
HELD : l. Whi1e the right to appeal is statutory, the power to stay is discretionary.
But judicial discretion-indeed, even executive discretion-cannot
run riot.
The former though plenary, is governed in its
e~ercise by sound
guidelines and courts look for light, inter alia, from practice and precedent
without however being hide-bound mechanically. Judicial power is dynamic,
forward looking and socially luscent and aware.
(407 H, 408 A]
2. The court decides forensic questions \Vithout getting embroiled in nonF
legal disputes working as it does in a sound-proof system of sorts. The Court
is the quiet of the storm centre and views with an equal eye, the claims on
each side, taking judicial note of the high issues and balance of convenience in
the wider context. The judicial approach is to stay away from political thickets
and new problems with institutionalised blinkers on, so long as the court
methodology remains the same. Arguments about political sentiment, political
propriety and moral compulsion though relevant at other levels, fall beyond
the conventional judicial orbit and the courts have to discrirninately 5hift them
while deciding on the grant of stay pending an appeal. If national crises and
G
democratic considerations, and not mere balance of convenience and interests
of justice, were to be major inputs in the Judge's exercise of discretion, systematic
changes and shifts in judicial attitude may perhaps be needed.
But sitting in
time-honoured forensic surroundings the Supreme Court is constrained to judge
the issues before it by canons sanctified by the usage of this Court.
[408 C-fi]
3. The preliminary objection of "unclean hands" not entitling the petitioner/
appel1ant to seek the equitable relief of stay is not founded on facts.
The stay
order does not state that it was to enable the election of a different leader that
H
time was granted. The petitioner could not be faulted as having played false
to the Court since the Congress Parliamentary Party convoked subsequent to
the judgment has full-bloodedly plumped in favour of her remaining in office
406
SUPREME COURT REPORTS
[!978] 2 S.C.R.
A
as Prime Minister and guiding the Party as its one and only leader.
In such
matters one has go by prima facie materials and probabilities. [408 H, 409 A-El
B
c
D
E
4. At the stage when the Court is considering whether a stay should
be
granted or not, it is premature and perhaps unwise to pronounce on the merits
of the appeal itself except where the judgment contained grotesque errors
absurd conclusions or grossly erroneous propositions of law.
The High Court's
finding, until upset, holds good, however weak it may ultimately prove.
The
offence of corrupt practice u/s 123 of the Representation of the People .Act,
1951 may be light or grave, which is for the Bench which hears the appeal
in extenso to hold, one way or the other. When findings of contravention of
the election law is before the Court, this Court cannot take the prima fac:ie view
that the justice of the case justifies indifference to those findings.
(410 C, 411A, F-G]
5. Socio-legal considerations such as prior practice of this Court, specii'i
circumstances compelling departure. the balance of convenience, dictates ot
public justice, the way in which public interest fies, are relevant to the grant or
refusal of stay and the terms to be imposed on the petitioner in the event o[
grant.
[411 H, 412 A]
6. It was for the first time in 1966, by amending Act LXVII of 1966, that
a statutory right of appeal to the Supreme Court was created by S. l: 6:\ of
the Representation of the People Act, 1951 and a plenary power to grant stay.
conditional or otherwise was vested in this Court u/s 116 B(2) of the .'\ct,
independently of constitutional remedies. The question of an absolute stay
or a qualified stay of the unseating verdict did not and could not arise under
the pre-1966 law and to rely upon past precedents as tantamount to absolute
stay of an order which took effect would be untenable.
[413 G. 414 C-El
7. The "type-design" of stay orders made by this Court under the post1966 law has, with marginal variations, acquired a standardized form.
This
cursus curiae is more persuasive for adoption, unless exceptional legal or other
grounds for deviation are made out for grant of absolute stay.
The order-~
are dichotomous in character. They are: (a) that "the operation of the judgment and order of the High Court be and is hereby stayed" and (b) the petitioner shall abide by certain enumerated terms viz. (i) that he will be entitled
to attend the Sessions of the Legislature and si"gn the Register; (ii) he shalt not
take part in the vroceedings of the House or vote or draw any remuneration as
such member. (414 F-G, 415 A-BJ
8. Section 8A being the necessary follow-up of the
judgn1ent u
1
-~ 100 ot
the Representation of the People Act, 1951 the legal effect of an order of this
Court suspending the application of the judgment and order of the High Court
F
is that by sheer force of the first limb of this court's stay order, the judgment and
order of the High Court is nu11ified for the nonce i.e. till the appeal is disposed of. Consequently the disqualification also ipso jure remains in abeyance.
There is a plenary eclipse of the High Court's judgment and order during the
'
G
H
pendency of the anpeal, subject to the feVv· restraints clamped dov;n on the
appUcant.
[415 C-D, H, 416 A]
9. This appeal relates solely to the Lok Sabha Membership of the applicant
and the subject matter of her office qua Prime Minister is not directly before
this Court in this litigation. Indeed that office and its functions are re~lated
carefully by a separate fasciculus of Articles in the Constitution. There
is
some link between membership of one of the two Houses of Parliament and
Ministership (Art. 75), but once the stay order is $de. the disqualification
regarding Membership is in
suspended
animation
and
d-oes
not
operate.
Likewise the apnellant's Membership of the Lok Sabha remains in force so long
as the stay IastS.
However there will be a limitation regarding the appellants'
participation in the proceedings of the Lok Sabha in her capacity as Member
thereof, but. independently of the Membership, a Minister and a fortiori the
Prime Minister. has the right to address both Houses of Parliament (without
right to vote. though) and has other functions to fulfil (Arts. 74, 75. '.18 and
s8 are Illustrative..)
In short the restraintq set out in die usual stay orde:-
cannot and \Vill not detract from the appelfant being entitled to exercise ~uch
..
r
INDIRA GANDHI v. RAJ NARAIN (Krishna Iyer, J.)
407
rights as she has, including addressing Parliament and drawing salary, in her
A
capacity as Prime Atfnister.
There \Vill thus be no ]egal embargo on her holdw
ing the office of Prime rvlinister.
[416 D-G}
[The c;ourt gave liberty to the parties to move a Division Bench of this
Court, if justifying considerations appeared necessary later on, to move for
variations of the conditions of the instant stay order]
CIVIL APPELLATE )VRISDICT!ON: Civil Appeal No. 887 of 1975.
B
and
Civil Misc. Petition No. 3557 of 1975
(Application for absolute and unconditional stay witb an exparte, ad
interim order).
N. A. Palkhiva/a and J. B. Dadachanji for the Appellant.
c
J. P. Goyal for the Respondent.
ORDER
1. Right at the beginning, I must record appreciation of
the
valuable assistance given by counsel on both sides to the Court in
D
olarifying the twilit aspects and unravelling the latent facets of what,
viewed in typically isolated legal perspective, unturned to the national
wave-length and unclouded by the dust-storms of politics, is a humdrum case. Having reg-drd to the obstroperous environs and mounting
tensions surrounding the events following upon tbe judgment of the
Allahabad High Court. it must be stated to tbe credit of Shri Palkhivala and Shri Shanti Bhushan that in their suave submissions
they
E
have shown how sound and fury only llelp thwart the thought-ways
of law and extra-legal tumults can be walled off from the Court
hall.
The arguments have been largely legal and their merits have
to be weighed in judicial scales. What, perhaps in a certain view, are
nat strictly pertinent to the stay proceedings have, however, been
adverted to at the bar, inevitably and understandably,
but within
marginal limits, if I may say so, because the proceedings in tbe Halls
F
of Justice must be informed, to some extent, by the great verity that
tbe broad sweep of human history is guided by sociological forces
beyond the ken of tbe noisy hour or tbe quirk of legal nicety. Life
is larger than Law.
Now I proceed to discuss the merits of the
matter.
2. The appellant has moved this Court challenging the 'unseating'
G
verdict against her by tbe High Court.
She has also sought 'absolute stay' of the judgment and order under appeal.
Entering
a
caveat, the respondent has also appeared through counsel and opposed
the grant of stay.
3. While tbe right to appeal is statutory, the power to stay is
<liscretiomrry.
But judicial discretion-indeed, even executive
disH
cretion-cannot run riot. The former, though plenary, is governed in
•Already reported in (1976) 2 S.C.R. P. 347.
408
SUPREME COURT REPORTS
(1978] 2 S.C.R.
A
its exercise by sound guidelines, and courts look for light, inter aha.
from practice and preced"nt,
without however being hide-bound
mcchun:.:nlly by the past alone. After all. Judicial power is dynamic,
forward-looking and socially luscent and aware. I mention this dime·1sion of 'judge-power' because the industry and ingenuity
of bo:h
lawyers have unearthed prior instances zigzagging now and then but
substantially striking the same note.
A few orders from the debris
B
of old records have been brought up which seem to suggest 'ariatinm
in the type of stay granted by th;: higher courts.
I
shall
haw
occasion tc dilate on them a little later.
Suffice it to nole that the
power of the court must rise to the occasil)Il, if justice, in its largt:r
...
connotation, is the goal-and it is.
'i
c
D
E
F
G
H
4. Having rogard to the historic power-stakes invohed in this
election appeal and stay proceeding, vigorous argumenb, marked bv
strokes of heat and flashes of light, have been heard in thi.s application for stay and the time consumed at the bar has been considcrablv
more than when like matters have been routinely dealt with b,· this
Court. Let it be plainly understood that the Court decides
torensic
questions without getting embroiled in non-legal disputes working a<
it does in a sound-proof system of sorts.
Moreover, notwith~tanding
the unusual. though natural, excitement and in1portance
surroundiag
the case. the Court is the quiet of the storm centre and views, with
an equal eye, the claims on each side, taking judicial note of tht:
high issues and balance of convenience in the wider context. Argu ..
n1cnts about public sentiment, political propriety and moral con1pulsion, though touched upon at the bar and relevant at other levels
fall beyond the conventional judicial orbit and have to be discriminatefy shifted.
Nevertheless, Shri Palkhivala. has pressed before me
the propriety and urgency of the Court taking into consideration the
national situation even while exercising its discretionary po\ver.
A~
a counterweight to this submission, Shri Shanti Bhushan l1'1s claimed
that no republic can sum,nder its democratic destiny to a single soul
without being guilty of ol'erpowering the parliamentary process by
a personality cult.
This brings to the fore an activist interrogation
about the cognisibility of such considerations by a courl.
Do the
judicial process and its traditional methodology sometimes make the
Judicature look archaic, with eyes open on law and closed on society,
forgetting the integral yoga of law and society ? If national crises
and democratic considerations,
and not mere balance of convenience
and interests of 'justice', were to be major inputs in the Judg~.·s exerc;se of discretion. systemic changes and shifts in judicial attitudes may
perhaps be needed.
Sitting in time-honoured forensic surroundings
I am constrained to judge the issues before me by the canons sanctified by the usage of this Court.
5. Now to the points urged before me.
More or less by way of
preliminary objection, Shri Shanti Bhushan asserted that the petitioner.
having come with unclean hands. was not entitled to seek the equitable relief of stay.
How were her hands unclean ?
Because. the
argument runs, her advocate induced the High Court into granting a
stay by misrepresenting that if the judgment came
into
immediate
,
'
~.-
INDIRA GANDHI v. RAJ NARAIN (Krishna Iyer, J.)
409
effect, the national government wonld be paralysed for want of a
A
Prime. Minbtcr and so time was needed for the ruling Party to elect
a new leader to head the Government. Taken in
by this
alleged
critical need of the democratic process, the learned Judge granted 20
days' stay.
This spell, ingeniously secured, was perverted to consolidate her leadership, not to find a successor.
If this version of the
respondent wae veracious, the petitioner's conduct were dubious and
this Court would not COJldone such 'solemn mockery'. But Shri Shanti
B
Bhushan's submission loses its sting if Shri Palkhivala were to be
heeded. For, according to the latter, all in a hurry a stay was moved
by the Allahabad advocate praying for stay stating both the need
to elect a leader (not, another leader) and to enable filing
of an
appeal. The Congress Parliamentary
Party was
since
convoked
but there
was a thunderously unanimous
vote reaffirming faith
in the petitioner as leader and Prime Minister. If her Party so fullC
bloodedly plumped in favour of her remaining in office
as
Prime·
Minister and guiding the Party as its one and only leader, the petitioner could not be faulted as having played false to the Court. She
could only call a meeting of the Party but not coerce the members
to elect anyone other than the one they had set their hearts upon.
Whether that Party's leadership resources were too inadequate
to
secure an alternative chief may be an interesting question, but the
D
Court does not peep into that penumbra! area.
Moreover, the stay
order does not state that it was to enable the election of a different
leader that time was granted.
I have no good reason to reject the
petitioner's plea that the choice of an alternative leader was left to
her Party, that she did what she could in the spirit of the representation to Court and did not what she could not viz., to force her
partymen to push her aside for the nonce for the Court's satisfaction.
E
In these matters one has to go by prirna facie
materials and probabilities.
I overrule the 'unclean hands' objection.
6. Shri Palkhivala, for the petitioner, contended that an unconditional stay was appropriate and essential because (a) it was Sanctioned by some precedent; (b) there were momentous consequences
disastrous to the country if anything less than the total suspension of
the order under appeal were made; (c) the adverse holding of the
High Court on two counts hardly exceeded, even on its face, technical
violations unworthy of being visited· with an ad interim embargo on
Parliament Membership during the pendency of the appeal apart from
being palpably perverse and (d} the nation was solidly behind the
petitioner as Prime Minister.
Minimal justice, public interest
and
balance of convenience concurred in his favour. Shri Shanti Bhushan,
on the contrary, joined issue on these pleas and asserted that (a) the
appellant must be treated like any other party; (b) that an absolute stay was unprecedented; (c} that the democratic process would
take care of itself even if the petitioner stepped aside for a while:
(d} the corrupt practices were corrupt in law and fact, fully proved
and could not be glossed over by a court of law as technical and
( e) the alleged solid support by party minions meant little since
similar phenomena could be organized by any strategist in top office
and the rule. of law cannot be drowned by the drums and shouts
F
G
H
410
SUPREME COURT REPORTS
[1978) 2 S.C.R.
A
of numbers.
In his submission, public interest aud balance of convenience as also justice to the High Court judgment demanded that
an illegally elected Member did not continue longer as Prime Minister
under the umbrella of a stay order from this Court, without jeopardizing the credibility of the country abroad.
7. Shri Palkhivala assailed, in his opening submis;ions, the two
B
findings recorded against the appellant holding her guilty of corrupt
practice. Indeed, he was at pains to convince me that his client had
J
a strong prima facie case on the merits, in the sense that the judgment,
on its face, was perverse and legally untenable. Although I listened
,
at some length to these arguments and, tO an extent, to the countersubmissions made by Shri Shanti Bhushan in his endeavour to establish that the holdings were sound, I made it fairly clear in the course
C
of the bearing that at this stage when I was considering whether a stay
should be granted or not, it was premature and perhaps unwise to
pronounce on the merits of the appeal itself except where the judg-
- ment contained grotesque errors,
absurd
conclusions
or
grossly
erroneous propositions of law. Having considered the submissions on
this basis, I do not think I should express any opinion one way or
the other on the merits of the findings. Nor do f regard it just for
D
counsel for the respondent to say that every discrepancy in the petitioner's evidence or other incorrectness in testimony can be called
false.
Not to accept a witness's evidence may be due to many
grounds of probability not always because of unvercity or unreliablity.
These aspects will surely be examined at the hearing of the appeal,
not now.
E
F
G
H
8. Counsel for the petitioner, after dealing with the ex-facie untenability of the judgment under appeal which I have just disposed
of, moved on to what he called justice between the parties.
This is
not an ordinary lis, where even after stepping down from office, the
petitioner can, if and after she wins the appeal step back into oilicc.
In politic~ 'red in tooth and claw', power lost is not necessarily
followed, after legal victory by power regained.
The Court cannot
in that sense, restore the parties to their original position as in ordinarv
cases.
However, the respondent suffers no prejudice by the con:inuance of the petitioner as Parliament Member and Prime Minister.
To cap it all, there is hardly a run of a little over half-a-year for the
full term of this Parliament to expire. So, he pressed for continuance
of the status quo which had gone on for a few years now during the
pendency of the Election Petition.
9. The respondent's counsel retorted that the question of iustice
between two private persons was alien to election litigation and cited
a ruling to emphasize what is obvious. In an election case, the whole
constituency is, in an invisible but real sense, before the court and
justice to the electoral system which is the paramount consideration is
, b(:St done by safeguarding the purity of the polls regardless of the
little rights of individual combatants.
10. At the first flush I was disposed to prolong the 'absolute stay'
granted by the High Court, moved not only by what Shri Piilkhivala
'
INDIRA GANDHI v. RAJ NARAIN (Krishna Iyer, J.)
411
had urged but by another weighty time factor that the appeal itself, in
the light of the directions I have a:lready given yesterday, may well be
decided in two or three months.
But on fuller reflection I
have
hesitated to take that course.
After all, the High Court's finding, until
upset, holds good, however weak it may ultimately prove.
The nature
of the invalidatory grounds upheld by the High Court, I agree, does
not involve the petitioner in any of the graver electoral vices set out in
Section 123 of the .Act.
May be they are only venial deviations but
the law, as it stands, visits a returned candidate with the same consequence of invalidation.
Supposing a candidate has transported one
voter contrary to the Jega! prohibition and even though he has won by
a huge plurality of votes his election is set aside.
Draconian Jaws
do not cease to be law in court but must alert a wakeful and quick-acting legislature.
So it follows that I cannot, at this preliminary stage,
lightly dismiss the illegality of the election as held by the High Court.
But more importantly, I am disinclined to set store by Shri Palkhivala's
'Private justice' submission (to borrow his own phrase) because the
ultimate order I propose to make, if I may even here anticipate, substantially preserves the position of the petitioner as Member of Parliament and does not adversely affect her legal status as Prime Minister.
11. In another facet of the same argument Shri Palkhivala urged
that, after all, the petitioner had been held 'technically' guilty
of
'corrupt practice' and that the grounds set out by the learned Judge
were too flimsy to stand scrutiny at the appellate level.
Therefore,
the 'justice' of the case demanded continuance of the 'absolute stay'
granted by the trial Judge himself.
Shri Shanti Bhushan, on the
other
side, refuted
this
submission
as
specious.
His
argument is this.
'Corrupt practice' could not be dismissed as
'technical' if one had any respect for the Jaw of the land
as laid down by Parliament. Once the Jaw has defined 'corrupt
practice', commission thereof cannot be condoned as 'technical.'
That
is definace of the Jaw and challenge to the wisdom of Parliament.
It
is one thing to amend the law, but it is another to disregard it on a
ground unknown to Jaw that is only a nominal deviance.
I am afraid
it is premature and presumptuous for me, at this stage, to pronounce
upon the relative worth of the findings of the High Court.
The offence may be light or grave.
But that is for the Bench which hears
the appeal i11 extenso to hold, one way or the other.
Before me are
findings of contravention of the election Jaw and I cannot take the prima
facie view that the justice of the case justifies indifference to those findings.
In short, I am not influenced by this aspect of Shri Palkhivala's
argument.
12. Leaving aside the injury to private rights as of lesser consequence in election disputes, Jet me look at the customary factors courts
are prone to probe in stay matters where the discretion vests
in
court.
13. What has been the prior practice of this Court in such cases ?
What, if any, are the special circumstances compelling departure in
favour of the petitioner ?
What is the balance of convenience ?
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
412
SUPRE'.VIE COURT REPORTS
[1978] 2 S.C.R.
What does the public justice of the case dictate ?
Which way docs
public interest lie ?
These are the socio-legal consiJeratiom which
arc relevant to the grant or refusal of stay and the terms to be imposeJ
on the petitioner in the event of grant.
Stay pending appeal has been
usually granted but hemmed in by conditions.
The respondent himsdf has filed a sheaf of orders of conditional stay granted by this Court.
suggesting by iinp-1.ication that those conditions ~houlJ be attach~d to
any stay the Court may be inclined to issue.
The terms in which such
limited stay orders have been couched, the legal implications thereof.
the right sun;ving under them and the impact thereof on the office of
Prime Minister of the petitioner will be scanned more closdy later in
this order.
Suffice it to say for the present that for arom;d two
decades there has rarely been what Shri
Palkhivala calls an ·absolute
stay' issued by this Court in election cases where a Member has bet'll
unseated by foe High Court for corrupt practice.
14. There was reference at the bar to political compubion' like the
swell of the tidal wave in favour of the petitioner which, even if true
(though controverted by the other side), cannot breach the legal dykes
to force a stay where precedentially it has not been grantcJ.
Nor can
the national crisis, conjured up by counsel for the petitioner, in the
event of her exit from office, be a valid legal consideration, even if it
may perhaps have weight in other spheres.
Shri Shanti Bhushan urges
that moreover one cannot readily accept that the nation will come to a
grindin~ halt it one person is not available to fill the office of Pr;me
Minister.
l make no comments on these rival presentations for it is
difficult for the Judge to guage with his traditional court roon apparatus the reality and extent of the circumstances of national magnitude
the parties have dwelt upon.
15. So w·o come to the next criterion which is commonplace in
this jurisdiction viz., the balance of convenience.
Herc. co•1~sel tor
the petitioner has addressed an attractive argument (repeating in some
measure what, under a different head, he had urged) that if the appea:
itself were disposed of early, the continuance of the status quo would gc•
a long way ro preserve and promote administrative stability and policY
continuity. having regard to the fact that the petitioner in this case wa>
more than a Member of Parliament but was the Prime Minister and
leader of the ruling Party.
In a democracy, the Prime Minister
i,;
the central figure who decides crucial internal and international policy.
directs n1casures of great economic moment and is responsible
and
accountable to the Parliament and the nation for the performance of
the Administration.
Of course, collective Cabinet responsibility is
of the essence of the democratic process, but the Council of Minister<
is virtually chosen by the President in accordance with the wishes of
the Pri,ne Minister.
The broad guidance of the Party in power notwithstanding. the personality of a Prime Minister has a telling effect
on democratic government.
If, therefore, the appeal itself will
be
disposed of in some months, as it is likely to be, the balance of
convenience will be in favour of continuance of the same team which
is
animated by the Presence of the key personality within the Council of
Ministers.
Again, the short spell of the pendency of the appeal-1
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INDIRA GANDHI v . . RAJ NARAIN (Krishna Iyer, J.)
413
case of ttis climactic pitch deserves to be disposed of with quick dispatch and I have already given some directions to facilitate it-is a
strong factor for non-disturbance of the petitioner's position, having regard to the traumatic effect on and grievous consequences to the petitioner. ··
Of co~rse, these a.re components of. a wider cpncept of ~al
ance ·of convemence and not altogether forbidden ground m dealing
with discretionary exercise. May be there is some force in the plea
that there should be a stay of operation of the judgment and order in
such manner that upsetting the Ministry in office should be obviated.
Ordinarily. even with·the same Party ruling; when a Prime Minister
resigns, the whole team is ushered out leaving it free for the new leader
to choose his new set.
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16. Shri Shanti Bhoshan has countered this argument by reliance -
on the practice in the parliamentary system where within the ruling
C
Party a leader is changed or ceases to be available and a new leader is
. elected, so that the democratic process finds smooth expression. This,
he said, has happened in India, as elsewhere and no plea of balance
of convenience can be built on what in fact is a desire to remain
in
office.·
The judicial approach, as already pointed out by me, is to
shy away from political thickets and view problems wit!) institutionalised blinkers 'on, so long as the court methodology remains what it is.
D
So no comments again.
But the balance of convenience, widely or
limitedly connoted, is reasonably taken care of in the shape of the conditional stay granted at the conclusion of this judgment.
·
17. Shrl Palkhivala drew iny ·attention. to a few vintage. instan~es
of what he calls absolute stay having been granted in election matters
by higher Courts.
These are cases of Jong ago and the argument
E
based on them stems from an insufficient comprehension about the
. anatomy of the pre-1956 Representation of the People Ac!,.1951 (Act
XLIH of 1951).
The Court speaks for today, based on current practice and present law.
18. In this context· it is necessary to remember that in the
Act
as it originally stood, Election Tribunals tried election disputes and
F
s. 107 provided :
107. Orders to take effect only on
publication-An
order of the Tribunal under section 98 or section 99 shall
· . not take effect until it is published in the Gazette of India
under section 106."
Indeed, there was no right of appeal provided in th~ Act and the
G
aggrieved parties had to approach the High Court or the Supreme Court·
under the provisions of the Constitution.
The higher Courts in such
situations merely stayed the publication in the Gazette, the consequence
being that the order of the Tribunal did not come into effect at
all.
The question, therefore, of an absol!Jte stay or a qualified stay
of
the unseating verdict did not and could not arise.
To rely
upon
H
orders passed under the then Jaw merely staying publication of the order
of the Tribunal in the Gazette as tantamount to absolute stay of
an
order which took effect would be untenable .
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·19. In 1956 a major change in the law was made ·whereby
the
order of the Election Tribunal appointed under s. 86 ~shall
take .
· effect as soon as it is pronounced by the Tribunal' ( vide s. 107, as
amended by Act XXVII of 1956).
By the same amending Act, an
appeal was provided from orders of Election Tribunals to the
High
Court of the State ands. 116A(4) clothed the High Courts with power
to stay operation of the order appealed from .and if stay was granted
'the order shall be deemed never to have taken affect'.
Of course,
against appellate orders of the High Court the disappointe\I party.could
come to this Court under the provisions of the Constitutiop (Arts.
133 or 136)..
··-
. 20. Still later, by amending Act No. LXVII of 1966, the
High
Court was conferred original jurisdiction to try• election petitions and_
it was provided in s. 107 that the order of the High Court 'shrul take
effect as soon as it is pronounced •..• '.
While a limited power_ to
stay operation of the order of the High Court was conferred by · · s.
116B(I) on. the High Court itself, the statutory right of appeal to the
Supreme Court was provided for by s. 1J6A.
However, by virtue of
s. 116B(2) it was enacted :
.
---
.
"116B(2). Where an appeal has been preferred against
an order made under section 98 or section 99, the Supreme
Court may, on sufficient cause being shown and on such terms .
and conditions as it may think fit, stay the operation of
the
order appealed from."
··
·· · ·
Thus, for the first time, it was in 1966 that a statutory right
of
appeal to this Court was created and a plenary power to grant sta,y,
conditional or otherwise, was vested in this Court, independently · of
constitutioqal remedies.
·
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21. This narration of the historical background regarding
the
pre-1966 statutory position is sufficient to distinguish old examples of
the pattern of stay. granted by this Court.
Today there is no-case of
prohibition of publication in the Gazette.
Above all, the type-design,
if I may use such an expression, of stay orders made by this Court under
the present law has, with marginal variations, acquired a standardised
form. Naturally, this cursus curiae is more persuasive for adoption,
unless exceptional legal or other ·grounds for deviation are made out
for grant of absolute stay.
22. Even on the basis of the post-1966 law, Shri Palkhivala has
argued that taking legitimate cognizance of the peerless position of
the appellant as Prime Minister of the country, judicial discretion mnst -
least disturb not merely her. seat in Pl!rliament but her office in Gp'vernment.
23. T proceed to take a close-up of the 'sample orders' made by
H
this Court durini the last many years, 'dissect them in the background .
of the judgments under appeal where such orders were passed and
mould my order deriving support therefrom.
So I tnrn the focus OIJ
the implications and effect of the stay orders in the cases covered' by
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INDIRA GANDHI v. RAJ NARAIN (Krishna Iyer, J.)
415
Annexure A filed by the respondent which are in consonance with the
A
usual orders passed by this Court in election appeals.
24. It is evident on its face that the orders are dichotomous in
character.
The two limbs stand out clearly and they are: (a) that
'the operation of the Judgment and Order of the High Court be and
is hereby stayed' and (b) the petitipner shall ·abide by certain
enumerated terms viz., (i) he will _be entitled to attend the Sessions
of the Legislature and sign the Register; (ii) he shall not take part in
the proceedings of the House or vote or draw any remuneration as
such Member.
In the instances I have examined, the appeals are
against orders 'unseating' the returned candidate on the ground of
corrupt practice and disqualifying him for the statutory six-year period
prescribed in s. SA. If cprrupt practice is
found,
disqualification
follows, although sometimes the trial Court expressly writes it into
the order itself, as in the present case.
If the finding of corrupt practice does not come into effect, the sequel of disqualification also does
not come into effect.
If the biopsy of the stay order inevitably shows
that the finding of corrupt practice is suspended and is not operative,
the electoral disqualification automatically stands eclipsed. Section SA
being the necessary follow-up of the judgment under s. 100, what is
the legal effect of an order by this Court suspending the operation of
the judgment and order of the High Court ?
By sheer force of the
first limb of this Court's stay order, the judgment and order of the
High Court is nullified for the nonce i.e., till the appeal is disposed of.
Consequentially, the disqualification also ipso iure remains in abeyance.
25. What then is the import of the conditions imposed in the stay
order ? They inhibit the elected member,
who otherwise by virtue
of the stay of the judgment, will be entitled to exercise all his rights
and privileges as Member, from doing certain things expressly tabooed,
viz., (a) participating in the proceedings; (b) voting or drawing remuneration.
For all other purposes, the voiding
judgment being
suspended, he continues as Member.
Indeed, the very direction that
he attend the House and sign in the Register as Member to avoid disqualification under Art. 101 of the Constitution postulates that he is
a Member and is not disqualified under s. SA of the Act.
For, if the
disqualification under s. SA operates and he ceases to be a Member,
there is no need to veto his drawing remuneration, voting or participating in the proceedings. It would be a curious contradiction to say
that a person is disqualified to be chosen as or being a Member and
yet be allowed to sign the Register as Member.
Can the Court,
without stultifying itself and usurping power, permit a non-Member to
sit in the House instead of or even in the Visitor's gallery, unless it
necessarily reads into the order of stay of judgment a suspension of
the disqualification also ? There are a number of other privileges for
a Member of Parliament which are left untouched by this Court's
prior stay orders.
Moreover, the specific direction suspending the
judgment and order under appeal, read in its plenitude, also suspends
the finding of corrupt practice. So much so, the disqualification also
shares the fate.
I have no doubt that the reasonable effect of a stay
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SUPREME COURT REPORTS
[1978] 2 S.C.R.
order is that there is a plenary eclipse of the High Court's judgment
and order during the pendency of the appeal. subject to the few restraints clamped down on an
appellant.
Those
restraints
are the
second limb of the stay order and are explicit enough.
26. The essential point to note is that by necessary implication the
disqualification imposed on every appellant abo stands suspended in
all cases of conditional stay.
The stay is complete, but carved out of
it are but three limitations.
For all other purposes, the appellant, in
all such cases, continues a Member.
For instance, if he is prevented
from entering the Legislature, a breach of privilege arises.
l
have
gone at length into these ramifications to remove recondite doubts.
The typical stay restores to the appellant, during its operation, the full
status of a Member of a Legislature minus the right to participate in
debates, including voting and drawing of remuneration us a legislator.
27. For these reasons I propose to direct a stay, substantially on
the same lines as have been made in earlier similar cases, modified by
the compulsive necessities of this case.
28. What would be the legal impact of an order of this type on
the Prime Ministership of the petitioner ? The question canvassed
about the office of the Prime Minister and its involvement in the
present case has exercised counsel on both sides and it is but proper
to dissolve the mists of possible misunderstanding by an explicit statement.
This appeal, it is plain. relates solely to
the Lok Sabha
Membership of the appellant and the subject matter of her office qua
Prime Minister is not directly before this Court in this litigation.
Indeed, that office and its functions are
regulated carefully by a
separate fasciculus of Articles in the Constitution. There is some link
between Membership of one of the tw,d Houses of Parliament and
Ministership (Art. 75) but once the stay order is made.