# ~)- JUGAL KISHORE PATNAIK v. RATNAKARMOHANTY

- **Citation:** [1977] 1 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 1976-07-26
- **Case number:** Civil Appeal No. 910 of 1970
- **Bench:** H. R. Khanna, V. R. Krishna Iyer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jugal-kishore-patnaik-v-ratnakarmohanty-6938
- **Pages:** 10

## Headnote

Representation of.the People Act, 1951-S. 9A-Contract signed as President,
Gram Panchayat-Rejection of nomination paper-If vdid-lmproper
rejec'-
tion-lf Courts could give relief under s. 100(1) (o).
On the ground that there were subsisting contracts between him and the
. State Government for execution of certain works, the nomination ·papers of the
respondent for the general election to the State Assembly were r10jected by the
Returning Officer under s. 9A of the Representation of the People Act, 1951
at the instance of one of the contesting candidates. In the election that ensued
the appellant was declared elected. The respondent in his election petition
contended that the works on account of which he had been disqualified had
been undertaken by him, not in his personal capacity, but as the Sarpanch of
the Gram Panchayat. The High Court held that the respondent was not disqualified under s. 9A of the Act and declared the election void.
On appeal, it was contended that the objections regarding the validity of
the nomination papers of the respondent were raised in collusion with the
respondent and a duly elected candidate should. not be made lo suffer because
of an order made on such collusive objections.
Dismissing the appeal,
HELD : (I)( a) The appellant has clearly admitted in his written statement
that objections which were filed about the validity of the respondent's nomination
papers were not collusive but genuine. [53 G]
(b) According to Sec. 100(1 )( c) of the Act, if the High Court is of the
opinion that any nomination had been improperly rejected, it shall declare
the election of the returned candidate to be void. In view of the imperative
nature of the provision, it is open to question as to whether courts can, in
the event of an improper rejection of nomination, afford relief to the successful
candidate on the score that the objections resulting in the improper rejection of
nomination, were collusive.
Whether the legislature would do something in the
matter is essentially for the legisJ,\lture to decide. [53 G-H]
(2) A perusal of one of the disputed items shows that the tender ill
respect of the work was accepted on behalf of a Cooperative Society of which
the respondent was the President. It was not the respondent but the Society
Which entered into contract for the execution of the work and he signed the,
documents in his capacity as President of the Society. The contract was not
subsisting on the date of filing of the nomination paper. In respect of anbther
item the contract was not entered into with the respondent in his personal
capacity but the work bad) to be ·executed by the Gram Panchayat. [54 F-G]
Krishna Iyer J. (concurring)
( 1) Jn the instant case the Returhing Officer was taken in by the specious
plea that the respondent had subsisting contracts with the State Government
and rejected h!s nomination papers. Its aftermath was that the people's verdict
ha~ ~en stult1fie~.
~ad ~ere been any procedure for quick determination of
ob1ections to nommations with early appellate finality attached to it the lurking
danger of the whole process being ultimately baulked on account df antecedent
•fficial error would not have arisen. [56 CJ
.J-.
(2) The ambiguity in s. 9A, especially as to how long and in what sense
can a contract be. said to be subsisting envelopes the disbarment provision with
subtle_ legal quest10ns such as : how long does a contract subsist ? · •Is every
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
'
50
SUPREME COURT REPORTS
[ 1977) 1 S.C.R.
liability ~~ising on a breach of contratt a claim under the comract attracting
the prov1s10ns of s. 9A? If Government money is involved in the execution
of the work does the contract necessarily become one with Government ? It
is very desirable that the disqualificatory net should not be cast too wide to
disfranchise innumerable persons and must be easy of ascertainment if
uncertainty is not to overhang elections.
(56 E-H]

## Text

~)-
JUGAL KISHORE PATNAIK
v.
RATNAKARMOHANTY
July 26, 1976
49
[H. R. KHANNA, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]
Representation of.the People Act, 1951-S. 9A-Contract signed as President,
Gram Panchayat-Rejection of nomination paper-If vdid-lmproper
rejec'-
tion-lf Courts could give relief under s. 100(1) (o).
On the ground that there were subsisting contracts between him and the
. State Government for execution of certain works, the nomination ·papers of the
respondent for the general election to the State Assembly were r10jected by the
Returning Officer under s. 9A of the Representation of the People Act, 1951
at the instance of one of the contesting candidates. In the election that ensued
the appellant was declared elected. The respondent in his election petition
contended that the works on account of which he had been disqualified had
been undertaken by him, not in his personal capacity, but as the Sarpanch of
the Gram Panchayat. The High Court held that the respondent was not disqualified under s. 9A of the Act and declared the election void.
On appeal, it was contended that the objections regarding the validity of
the nomination papers of the respondent were raised in collusion with the
respondent and a duly elected candidate should. not be made lo suffer because
of an order made on such collusive objections.
Dismissing the appeal,
HELD : (I)( a) The appellant has clearly admitted in his written statement
that objections which were filed about the validity of the respondent's nomination
papers were not collusive but genuine. [53 G]
(b) According to Sec. 100(1 )( c) of the Act, if the High Court is of the
opinion that any nomination had been improperly rejected, it shall declare
the election of the returned candidate to be void. In view of the imperative
nature of the provision, it is open to question as to whether courts can, in
the event of an improper rejection of nomination, afford relief to the successful
candidate on the score that the objections resulting in the improper rejection of
nomination, were collusive.
Whether the legislature would do something in the
matter is essentially for the legisJ,\lture to decide. [53 G-H]
(2) A perusal of one of the disputed items shows that the tender ill
respect of the work was accepted on behalf of a Cooperative Society of which
the respondent was the President. It was not the respondent but the Society
Which entered into contract for the execution of the work and he signed the,
documents in his capacity as President of the Society. The contract was not
subsisting on the date of filing of the nomination paper. In respect of anbther
item the contract was not entered into with the respondent in his personal
capacity but the work bad) to be ·executed by the Gram Panchayat. [54 F-G]
Krishna Iyer J. (concurring)
( 1) Jn the instant case the Returhing Officer was taken in by the specious
plea that the respondent had subsisting contracts with the State Government
and rejected h!s nomination papers. Its aftermath was that the people's verdict
ha~ ~en stult1fie~.
~ad ~ere been any procedure for quick determination of
ob1ections to nommations with early appellate finality attached to it the lurking
danger of the whole process being ultimately baulked on account df antecedent
•fficial error would not have arisen. [56 CJ
.J-.
(2) The ambiguity in s. 9A, especially as to how long and in what sense
can a contract be. said to be subsisting envelopes the disbarment provision with
subtle_ legal quest10ns such as : how long does a contract subsist ? · •Is every
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
'
50
SUPREME COURT REPORTS
[ 1977) 1 S.C.R.
liability ~~ising on a breach of contratt a claim under the comract attracting
the prov1s10ns of s. 9A? If Government money is involved in the execution
of the work does the contract necessarily become one with Government ? It
is very desirable that the disqualificatory net should not be cast too wide to
disfranchise innumerable persons and must be easy of ascertainment if
uncertainty is not to overhang elections.
(56 E-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 910 of 1970~
(From the Judgment and order dated
16-6-1975 of the Orissa
High Court in Election Petition No. l /7 4).
D. P. Singh, R. P. Singh, Rajiv Dutta, Mrs. Ni/ma, L. R. Singh and
R. K. Jain, for the Appellant.
Santosh Clzatferjee, G. S. Chaterjee and D. P. Mukherjee, for the
Respondent.
The Judgment of H. R. Khanna and N. L. Untwaiia, JJ., was:
delivered by Khanna, J. V. R. Krishna Iyer, J, gave a sqrarate concurring opinion.
KHANNA, J. On an
election
petitlion filed by
Ratnakar
Mohanty respondent, the election of Jugal Kishore Patnaik appellant
to the Orissa Legislative Assembly from Bhadrak constituency was
declared to be void by the Orissa High Court and as such set aside.
The appellant has filed the; present appeal against the judgment of the
High Court.
.
_
Bhadrak assembly constituency is a single-member general constituency. During the general elections to the Orissa Legislative Assembly
heid in February 1974, the respondent filed four nomination papers
for being elected from this constituency. At the time of scrutiny on
January 30,, 1974, objection was raised at the instance of Balaram
Sahu, one of the contesting candidates, before the Returning Officer
that the respondent was disqualifie~ for being chosen as a member of
the Assembly as there subsisted contracts between him and the Government of Orissa for execution of certain works. The respondent, it was
accordingly asserted, was disqualified under section 9A of the Representation of the People Act, 1951 ,(hereinafter referred to as the Act)
from seeking election.
Some documents were also produced before
the Returning Officer to show that proceedings had been initiated by
the Block Development Officer for realisation of certain amoun!s
alleged to be due under those contracts from the respondent.
The
Returning Officer upheld the objedion and rejected the
nomina!ion
papers of the respondent.
Four candidates contested the election, but the main contest was
between the appellant, a Congress nominee, who secured 25,522
votes., and Balaram Sahu, an Utkal Congress nominee, who secured
18 723" votes. The result of the election was declared on February 28,
1974. Petition to challenge the election of the appellant was filed by
the respondent on April 12, 1974.
The case of the respondent, as set up in the election petition, was
that his nomination papers had been improperly rejected by the Returning ·officer.
According to the respondent, the works on account
f ·
)
"
JUGAL KISHORE v. RATNAKAR (Khanna, !.)
51
of which he had been held to be disqualified by the Returning Officer
A.
had been undertaken by him not in his personal capacity but. as
the
Sarpanch of Rahanj Gram Panchayat under the Bhadrak Panchayat
Sarni.ti.
The respondent, therefore, prayed that the election of the.
a_ppellant be declared to be void.
The petition was resisted by the appellant. Objections were raised
on his behalf that the petition was liable to be dismissed for non-comB'
pliance with sections 81, 82 and 83 of the Act. It was also averred
that the nomination papers filed by the .respondent were not in conformity with sections 33 and 34 of the Act. On merits, the appellant stated
that the respondent was disqualified under section 9A of the Act from
seeking election to the Legislative Assembly\ of Orissa because he had
on the date of filing of the nomination papers subsisting contracts with
the Government of Orissa in course of his trade and business for exeC
cution of work undertaken by the Government. Following issues were:
framed by the High Court :
ISSUES
l. Is the election petition liable to be; dismissed for noncompliance of sections 81, 82 and 83 of the Representation
of the People Act, 1951 ?
2. Whether the nomination paper filed by the petitioner
was in substantial compliance of sections 33 and 34 of the
Representation of the People Act, 1951?
3. Was the petitioner disqualified under section 9A of the
Representation of the People Act, i951 having subsisting
contract with the Government of Orissa in course of his
trade and business for execution of work undertaken by the
Government on the date of the filing of the nomination ?
4. To what relief, if any, the petitioner is entitled to in the
facts and circumstances of the case ?"
Issues ( 1) to ( 3) were decided by the High Court in favour of the
respondent and against the appellant. In the result, the election of the
appellant was declared to be void.
D
E
F.
In appeal before us Mr. D. P. Singh has at the outset assailed on
behalf of the appellant the finding of the High Court on issue No. (1).
The challenge to the finding on issue No. (1) is, however, confined
only to alleged infraction of sub-section ( 3) of section 81 of the Act.
G
According to that sub-section,, every election petition shall be accompanied by as many copies thereof as there are respondents mentioned
in the petition, and, every such copy shall be attested by the petitioner
under his own signature to be a true copy of the petition. Mr. Singh
contends that no aftested copy 0£ the election petition signed by the
petitioner was filed along with the petition. This contention has been
controverted by Mr. Chatterjee Olli behalf oe the respondent, who sub~
H
mits that a copy of the petition attested by the respondent under his
own signature was filed along with thel petition. It is further pointed
out that· th<' said attested copy of the petition was sernt along with tlir.:
A
B
c
D
E
F
H
52
SUPREME COURT REPORTS
[1977] 1 S.C.R.
summons to the appellan~, but as: he declined to accept the sJlmmons,
the attested copy along with the summons was affixed at his residence.
The above stand of the respondent is borne ou~ by the report of the
process server.
Mr. Singh has assailed the correctness of the above report of the
process server, and has contended that in the index attached to the
petiti?n there was no reference to the copy.
As against that, it
is
submitted on behalf of the respondent that it is not the usual practice
in the High Court to refer, to the! copy of. the petition in the index.
There are, in our opinion, some broad facts of the case which lend
support to the finding of the High Court on issue No.
( 1) that the
election petition was, accompanied by an attested copy signed by the
respon.dent. Endorsement dated Aprit 15, 1974 made by an officer of
the High Court shows that a copy of the election petition had been
filed. We find no cogent reasonl as to why an officer of the-High Court
should make a false endorsement on the petition if,. in fact, no such
copy had been filed.
As regards the factum of the attestation of the
copy by the respondent under his own signature, we find that the appellant cannot in the yery nature of things assert positively that the copy
had not been attested by the respondent as, according to him,, he did
not see that copy. The copy was also not available on the record as
the S!J.me had been affixed at the residence of the appellant when he,
according to the report of the process server, declined to accept the
summons. Before summons were issued to the appellant, the following endorsement was made by an officer of the High Court in respect
of the election petition filed by the respondent :
"Defect Nil."
We see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed
with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the procedural requirement.
Mr. Singh has next assailed the correctness of the finding of the
High Court on issue No. (2). It is urged that the respondent obtained
signatures of his proposers on blank nomination papers, subsequentlv
filled in the columns and then filed the nomination papers. It is, in
our opinion,, not necessary to express opinion about three of the nomi~
nation papers as· we find that one of the nomination papers in any
case did not suffer from any such alleged infirmity. This nomination
paper of the respondent was signed by Laks.hmikant Mahapatra (PW 3)
as proposer. Evidence of this witness, clearly shows that he signed; the
nomination paper as proposer of the respondent after the vanous
columns in that pape11 had bee~ filled in. Nothing has been brought to
our notice as to why the statement of the witness in this respect be not
accepted. As at least one of the nomination papers filed by the respondent was in compliance ~ith ~e legal requirement,_ the High Court;
in our opinion, correctly decided issue: No .. (_2). In view of _the above
finding, it is not necessary to express · opm1on· on . the . P?Jnt as to
whether a nomination paper should be held to be mvahd m case the
-t-.
'
.. )
•.
JUGAL KISHORE v. RATNAKAR (Khanna, J.)
53
signature of the proposer is obtained before filling in the columns of the
nomination paper.
It has been faintly argued that Balaram Sahu, who raised objection
to the validity of the nomination papers of the respondent, was not impleaded as a party in the election petition and as such the. petition was
liable to be dismissed for non-joinder of parties. · This submission too
is bereft of force.
According to section 82 of the Act, a petitioner
shall join as respondents to his petition where the petitioner, in addition to claiming a declaration that the election of all or any of the
returned candidates is void, claims a further declaration that he himself
or any other candidates has been duly elected,, all the contesting candidates other than the petitioner, and where no such further declaration
is claimed, all the returned candidates. It is further provided that if
allegati~s of any corrupt practice are made in the petition against any
other candidate, he too shall be joined as a respondent. In the present
case, there was no prayer made by the respondent in the election petition that he or any other person should be declared to have b~en duly
elected.
There was also no allegation of corrupt practice against. any
candidate. . In the circumstances, the requirements of law should be
held to be. fully satisfied when the respondent impleaded the successful
candidate, namely, the appellant, as a respondent in the petition.
Contention has also been advanced on behalf of the appellant that
the objections of Balaram Sahu before ;the Returning Officer about the
validity of the nomination papers of the respondent were raised in collusion with the respondent. The appellant, who has been duly elected.,
should not, according to the contention, suffer because of any order
made on such collusive objections. In thi~ respect we find that there
is no factual basis for the assertion that the objections which were
raised by Balara1u Sahu about the validity of the nomination papers of
the respondent were of collusive character. On the contrary, the appellant in the course of his writtoo statement stated in respect of the ob- ·
jec,tions as under :
"At the time of the scrutiny valid and genuine objections
were filed against the petition~r on the ground that there was
subsistinfl.: contract between the petitioner and the Government of Orissa and as such he was disqualified to be a candidate."
A
B
c
D
E
F
In view of the unequivocal assertion of the appe!lant in the written
stateip_eiJt that the objections were valid and genuine, it would not be
permissible for the appellant to take an inconsistent stand in appeal and
G
urge that those objections had been filed in collusion with the respondent. Apart from that, we find that according to section 100 (:1) (c)
of the Act, if the High Court is of the opinion that any nomination has
been improperly rejected, it shall declare the election of the returned
candidate to be void. In view of the imperative nature of the provision, it is open to question as to whether the courts can, in the event
of an improper rejection of nomination, afford relief io the successful
H
candidate on the score that the objections resulting in the improper
rejection of the nomination, were collusive.
Whether the legislature
would do something in the matter is essentially for the legislature to
'
54
SUPREME COURT REPORTS
[1977] 1 S.CR.
A
decide. We need not, however, dilate upon this aspect of this case in
the face of our finding that the appellant has clearly admitted in
the
written statement that the objections which were filed about the validity
of the nomination papers of the respondent were not collusive but were
genuine.
·C
D
E
F
.
Lastly, Mr. Singh has assailed the finding of the High Court on
issue No. ( 3). Although during the course of the trial of the ejection
petition the appellant relied upon 15 items to show that the respondent
had entered into works contracts with the State Government, in this
Court Mr. Singh has ,confined his argument to only two items, namely~
item No. (1) and item No. (8). Item No. (l) relates to an advance
of Rs. 100 for repair of Erein SchooL
The1 case of the respondent is
that the above amount was received by him as Sarpanch of Gram Panchayat Rahanj,, and that the said work had to be executed by that Gram
Panchayat and not by the respondent personally.
The High Court
accepted the stand of the respondent, and we find no cogent ground
to take a different view. Ex. 43 is letter dated pecember 3,
1968
signed by the Sub-Divisional Officer Bhadrak to the Certificate Officer
for recovery of Rs. 7,017 /-. This letter shows that the aggregate mm
of Rs. 7,017, of which'Rs. 100 was a part, constituted the fund of the
Gram Panchayat. Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100
were paid' had to be executeq through the agency of Rahanj Gram Panchayat.
To similar effect is the statement of PW 9 Khageswar Roy.
Block Development Officer.
The evidence of this witness shows that
the amount in question was given to the Gram Panchayat for repair
work. The above material, in our opinion,, clearly shows that the contract for the execution of the repair work, which is the subject matter
of item No. (1), was not entered into with the respondent in his personal capacity and that the said work had to be executed by the Gram
Panchayat.
So far as item No. (8) is concerned, the same relates to work of
wooden culvert No. 9 on Jamujhari Khirkona road.
Ex. 55 is the
written agreement relating to tltis con_tract. Perusal of the agreement
makes it clear that the tender in respect of this work was accepted on
behalf of the Modern Labour Co-operative Contract Society, of which
the respondent was the President. The document thus shows that it
was not the respondent but the society which entered into contract for
the execution of the above work, and the respondent signed the document in· his capacity as the President of that Society.
1G
Apart from the above, we agree with the High Court that the above
contract was not subsisting on the date of the filing of the nomination
paper. The agreement for the execution of. the above work was dated
May 8, 1964. On November 24, 1966 an order was made by the
Block Development Officer that the construction work of the culvert
had been completed since long and fina\ measurements too had already
been made. The total work was found to be worth Rs. 4,253.70. It
H
was further observed in the order tha~ Rs. 722 should be paid on
account of the above work after deducting the previous advances and
cost of the material. The contractor was directed to return the material used in the tubewell. ,The abOve order of the Block Development
.!
.•
\
JUGAL KISHORE v. RATNAKAR (Krishna Iyer, !.)
55
Officer shows that the cost of the material and the amount~ advanced
A
to tl1e respondent were deducted before direction was given for payment of Rs. 722 to the contractor. Mr. Singh has laid particular stress
upon the direction id the order of the Block Development Officer that
the contractor should return the material used in the tubewe!I. In respect of the material used in the tubewell, it appears to us1 that the said
material was also returned by the contractor the same day the order
was made. According tq the testimony of RW 11 J.K. Satpathy Block
B
Development Officer, if the· material required to be returned as per that
last order was not returned, the final bill amount in respect of that
work could not have been paid.
Rs. 722 were, however, admittedly
paid on November 24, 1966.
The factum of that payment clearly
points to the conclusion that the contractor returne·d the material. used
in the tubewell before the payment of Rs. 722 was madt; to him. There
is also nothin_g to show that any demand was made to the contractor
C
subsequent to 1966 for return of the material used in the tubewell.
The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no material used in the tubewell remained with the contractoi;;' It cannot, therefore" be said that
1he said contract was subsisting on the date the respondent filed his
nomi11ation paper.
We consequently uphold the finding of the
High
·Court on items (1) and (8) under issue No. (3).
D
As a result of the above, we dismiss the appeal, but in the circumstances· without costs.
.
·
KRISHNA IYER, J., Whole-hearted is my agreement with the
judgment of my learned brocher Khanna J., both in the' conclusions and in
1he reasonings. This does not obviate an extra opinion. ·on certain
deeper, though peripheral, aspects of the law thrown up by the facts,
disturbing in their implications and laying bare certain gaping gaps in
1he election law. In a democracy,, the electoral process has a strategic
role and in India it has constitutional status although canalysed by the
Representation of the People Act, 1951 (hereinafter called the Ac.t).
Lord Holt long ago observed : (')
"A right that a man has to give his vote a~ an election of
a person to represent him in Parliament, there to concur to the
making of laws, which are to bind his liberty and property, is
a most transcendent thing, and of ani high nature, and the law
takes notice of it as such in divers statutes. . . . . . The right
of voting at the election of burgesses is a thing of highest
importance, and so great a privilege, that it is a great injury
to deprive the plaintiff of it ...... " ·
And, if I may add,. this widespread right belongs to every common
dtizen.
.
.
E
F
G
. In such ~irc~stan~es, ~Q one ca~ gainsay the need for the provis10ns regulatmg d1squa11fications affecting the adult franchise to run for
·elective office to be fool-proof to that degree that the little man oflndia
may confidently participate in the political process without being exH
posed to bcioby traps of the law.
(1) Quoted in University of Pensylvania Law Review 1968 p. 24 (Vol. 117).
A
B
c
D
E
F
G
H
56
SUPREME COURT REPORTS
(1977] 1 S.C.R.
In this case ~n election was honestly fough~ and won by the appellant but the verdict has been reduced to a Dead Sea fruit by a surprise
bl~w ?f the law because the r<:spondent's nomination, .on the captious
ob1ection of the defeated candidate (the appellant bem11 innocent at
that stage, of raising any obstructive tactic),
was ill;gally reje~ted
The facts, already sen out by my learned brother, disclose that the
wrong rejection by the Returning Officer was on the score that he had
subsisting contracts with the State Govemment. This ground was
plausibly urged before the Returning Officer by a candidate who polled
poorly.
The Officer was taken in by the specious plea and rejected
the respondent's nomination. Its aftermath, long after the election was
fought and won, is that people's verdict has been stultified and its victim is the then innOc:ent appellant. Had there been any procedure for
double-quick determinli_tion of objections to nominations with early
appellate finality attached to it, the lurking danger of the whole process
being ultimately baulked on account of antecedent official error would
not have arisen-a consummation devoutly to be wished. Nor does it
require great imagination to make provision in this behalf, but its omi11sion has led to the martyrdom of the appellant and the orphanage of
the electorate.
Y ct another legislative insutuc1ency surround in~ s. 9 A of the Act
needs to be highlighted. This provision, as has been explained earlier
by my learned brother, disqualifies a person from being a candidate if
there subsists a contract entered into by him in the course of his trade
or business with !he appropriate government for the supply of goods
to, or for the execution of an.Y works undertaken by, that government.
It is followed by an Explanation which is more or less a legal fiction.
The 1}lgged edges of ambiguity of s. 9A especially as to how long and
in what sense can a contract be said to be subsisting envelop! the disbarment provision with subtle legal questions.
The common man of
India is the potential candidate and is he to risk his candidature on
the niceties of the law of contracts ? In this context we must remember that the vast and various developmental works undertaken by the
State and its subsidiaries and executed by a large number of little construction contractors made it-very desirable that the disqualificatory net
should not be cast too wide to disfranchise innumerable persons and
must be easy of ascertainment if uncertainty is not to overhang elections
in our political system. In this very case several problems were mooted, somewhat difficult t01 answer. How long does a contract subsist ?
Is every liability arising on a breach of contract, a claim under the
contract attracting the lethal coils of s. 9A? If government money is
involved in the execution of the work.
does the contract necessarily
become one with government ? A host of other questions may mystify the legal ,imports of the taboo s. 9A sets out and yet every lay man
is imperilled by this vague provision in the exercise of his electoral
right.
Such a brooding fear and haunting provisions is counter-productive and may perhaps have to be re-drafted in the light of experience
in court.
These are problems not of high-sounding law but affecting
the common man in the exercise ot his most democratic right. · Nietzche once said : 'The great problems are in the streets'. The inaugural
error in the drawing up of our election law, as is illustrated by this
{_
:
JUGAL KISHORE v. RATNAKAR (Krishna Iyer, J.)
. 5 7
case, is that sophisticated provisions amenable to fogico-linguistic fea~s
A
or subtle interpretation of civil law m suit a r~ulatory area of the poll-
• tical process where the small individual offers himself for electoral contest.
I choose to make these observations and draw the attention of
the concerned instrumentalities only because in my humble view the
court has an activist role to tell the nation, through its judgment or
other designated channel~ where the law misfires, or how the law stands
m need of reform. This case therefore induc~s me to make what may
-B
be regarded as obiter :
"The little case, the ordinary case, is a constant occasion
and vehicle for creative choice and creative activity, for the
shaping and on-going reshaping of .our law."(')
More than a hundred years ago Lord Chancellor Westbury made cerc
tain seminal observations(2 ) :
"The first thing, then, that strikes every member of our
profession who directs his mind beyond the daily practical
necessity of the cases which come before him is, that we have
no machinery for noting, arranging, generalising and deducing conclusions from the observations which every scientific
mind could naturally make on the way in which the law is
worked in the country ...... Take any particular department
of the common law-take, if you please,
any particular
statute. Why is there not a body of men in this country whose
duty it is to collect a body of judicial statistics, or, in the
more common phrase, make the necessary experiments to
see how far the law is fitted to the exigencies of society, the
necessitie~ of the times, the growth of wealth, and the progress of mankind ? .... "
Way back in 1921,. Benjamin N. Cardozo, then a Judge oli New York's
highest court, said : (3)
"The Courts are not helped as they could and ought to
be in the adaptation of law to justice. The reason they are
not helped is because there is no one whose business it is to
give warning tha~ help is needed.
. ..... We must have a
courier who will carry the tidings of distress. . . . . . To day
courts and legislature work in separation and aloofness. The
penalty is paid both in the. wasted effort of production and in
the lowered quality of the product.
On the one side, the
judges, left to fight against anachronism and injustice by the
methods of judge-made law, are distracted by the conflicting
promptings of justice and logic, of consistency and mercy,
and the output of their labors bears the token of the strain.
On the 0th.er side, the legislature, informed only casually and
intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice
(1) Quoted in (1961-62) Vol. 71 Yale Law Jownal p. 259.
(2) Quoted in Vol. 128, Mod. L. R. p. 1.
(3) Address to the Association of the Bar of the City of New York, quoted. in
(3) supra.
6-1003 SCI/76
'
i.
D
E
F
G
A
B
58 •
SUPREME COURT REPORTS
[1976] 3 s.c.R.
as to the workings of one rule or another, patches the fabric
here. and there, and mars often when it would mend. Legislature and courts move on in proud and silent isolation. Some
agency must be found to mediate between them."
May be, as has been.done in the State of New York, the establishment
of a Law Revision Commission charged with comprehensive Jaw reform duties with direct link with the law court may go a lon_g way to
meet the felt need.
P.B.R.