# • ( • ,. SMT. INDIRA NEHRU GANDHI v. SHRI RAJ NARAIN

- **Citation:** [1976] 2 S.C.R. 347
- **Court:** Supreme Court of India
- **Decided:** 1975-11-07
- **Case number:** Civil Appeal No. 887 and 909 of 1975
- **Bench:** A. N. Ray, H. R. l<HtANNA, K. K. Mathew, M. H. Beg, Y. v. CHANDRACHUD
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-indira-nehru-gandhi-v-shri-raj-narain-6821
- **Pages:** 330

## Headnote

A
B
Constitutiou of India-Art. 329,A ( 4) and (5) as inserted by the ConstiC
tution (Thirty Ninth Amendment) Act, 1975-Validity of.
Election Laws (Amendment) Act, (Act 40) 1975 and the Constitution of
lndia (Thirty Ninth Amendment) Act, 1975-Validity of-Not open to challenge
on the score theot some members of Parliament were in preventive detelltio'nScope of Articles 79, 81, 85, 105(3) and 122 of the Constitution of lndia.
Preventive detention of the Members of Parliament-Challenge to-Not· D
permissible collaterally while challenging the validity of the Statute.
Represemation of the People (Amendment Act 58) of 1974-Validity of.
Election Laws (Amendment Act 40) of 1'975-Ss. 7, 8 and 10. Validity ofConstittttion of India Art. 31-B, 245 and 246 intent .
Election £c,ws (Amendment Act 40) of 1975-S. 7 is only clarificatory of
E
the State of Law and not changing the ,law-Validity of the amendment is not
open ta cha/lenge wizen unamended S. 123(7) df the Representation of the People
A ct (Act 43) of 1951 was not assailed-Amendment is intra vi res, t/1e powers
of the Parliamellt to legislate-Constitution of lndiQ Art. 327.
Constitution of lndia-Art. 368-Constituent powers
of
Parliame11tS11premacy of.
Basic structure, theo1)' of-Applicability to "o,rdinary legislation" 1111der Arts.
245, 246 of the Constitution of India.
Representatio!l of the People Act (Act 43) of 1'951-S. 123(3) as amended
by Election Law Amendment Act 40 of 1975-Use of "Cow and Calf symbol"
-Neither a religious nor a national symbol.
F
Eiection expenses-Expenditure "incurred" or "authorised"-Mea11illg and
G
tcsi of autlwrisation-S. 77, 83(1)(b) and 123(6) of the Representation of the
Prople Act 1951-Evidence and proof of allegations of exceeding the limit of
authorised expenditure-Candidate not required to disavow or denounce expcndi1life
Cor1·upt Practice-Proof of "Mens Rea" and "Actus Reus" is necessary u/s
123(7) of the Representation of the People Act.
Constitutidn of India An. 14-Amendment to Election Laws by Act 40
of 1975. special treatment to the Prime Minister and Speaker on account of
unique oflice-Placin~ the statutes in the protected Schedule under A rt. 31-11
dues not offend A rt: 14.
H
A
B
c
D
E
348
SUPREME COURT REPORTS
(1976] 2 S.C.R.
Pl<'adi11g alld Eridc11ce in Election petitions-A//egatio11 of corrupt practices. 8.3( I) (b) and 123 of the Representatio11 of the People Act-lllsufficie11t
pa111culars of corrupt practice-No amount of 1·ridencc b.e iooked into a case
11ot really set up.
Adverse inference, presumptio11 Of S. 114 illustration (g) of the Evidence Act
(Act !), 1872-Presumptio11 is always optional and one of fact and 1101 obliga•
tory.
Conclusive Proof-Gazette notificatio11 of appointment suspensio'n, retirement
or resignatio11 of Government employees-Cl. 8 of the Election Laws Amendmott Act 40 of 1975.
Interpretation df Statutes-Rule of construction of provisio11 widely worded.
Review Appl/cation--Order XXXVlll Supreme Court Rules 1966 read with
order XLV!l Rule 1 C.P.C.-Fai/ure to make a submission is not a ground 101·
reopening or review of a case.
D111y-Cou11se/'s duty while arguing a case, one of law and facts-What is.
Pursuant to the Notification dated January 27, 1971 u/s 14(2) of the Representation of the People Act. 1951, Smt. Indira :Nehru Gandhi, the appellant
filed her nomination papers on February 1. 1971 before February 3, 1971,
the last date therefor fixed by the Election Commission for Rae Barely constituency.
The appellant was for a number of years before the election, Prime
Minister of Tndia and is since then continuing to hold that office.
On
his
resignation w.e.f. 14-1-1971 the notification of which was gazetted on 25-1-1971
from the post of officer on special duty in the . Prime Minister's Secretariat
Yashpal Kapur was appointed the election agent of the appellant.
The signed
form about the appointment of Yashpal Kapur as an election agent was submitted
to the Returning Officer on February 4, 1971 the date of scruti

## Text

_Characters 0–39,782 of 1,100,709. This is a partial read: ask again with offset=39782 for what follows._

•
(
•
,.
SMT. INDIRA NEHRU GANDHI
v.
SHRI RAJ NARAIN
(and Vice Versa)
November 7, 1975
(With Review Application dated December 19, 1975)
347
[A. N. RAY, C.J., H. R. l<HtANNA, K. K. MATHEW, M. H. BEG AND
Y. v. CHANDRACHUD, JJ.]
A
B
Constitutiou of India-Art. 329,A ( 4) and (5) as inserted by the ConstiC
tution (Thirty Ninth Amendment) Act, 1975-Validity of.
Election Laws (Amendment) Act, (Act 40) 1975 and the Constitution of
lndia (Thirty Ninth Amendment) Act, 1975-Validity of-Not open to challenge
on the score theot some members of Parliament were in preventive detelltio'nScope of Articles 79, 81, 85, 105(3) and 122 of the Constitution of lndia.
Preventive detention of the Members of Parliament-Challenge to-Not· D
permissible collaterally while challenging the validity of the Statute.
Represemation of the People (Amendment Act 58) of 1974-Validity of.
Election Laws (Amendment Act 40) of 1'975-Ss. 7, 8 and 10. Validity ofConstittttion of India Art. 31-B, 245 and 246 intent .
Election £c,ws (Amendment Act 40) of 1975-S. 7 is only clarificatory of
E
the State of Law and not changing the ,law-Validity of the amendment is not
open ta cha/lenge wizen unamended S. 123(7) df the Representation of the People
A ct (Act 43) of 1951 was not assailed-Amendment is intra vi res, t/1e powers
of the Parliamellt to legislate-Constitution of lndiQ Art. 327.
Constitution of lndia-Art. 368-Constituent powers
of
Parliame11tS11premacy of.
Basic structure, theo1)' of-Applicability to "o,rdinary legislation" 1111der Arts.
245, 246 of the Constitution of India.
Representatio!l of the People Act (Act 43) of 1'951-S. 123(3) as amended
by Election Law Amendment Act 40 of 1975-Use of "Cow and Calf symbol"
-Neither a religious nor a national symbol.
F
Eiection expenses-Expenditure "incurred" or "authorised"-Mea11illg and
G
tcsi of autlwrisation-S. 77, 83(1)(b) and 123(6) of the Representation of the
Prople Act 1951-Evidence and proof of allegations of exceeding the limit of
authorised expenditure-Candidate not required to disavow or denounce expcndi1life
Cor1·upt Practice-Proof of "Mens Rea" and "Actus Reus" is necessary u/s
123(7) of the Representation of the People Act.
Constitutidn of India An. 14-Amendment to Election Laws by Act 40
of 1975. special treatment to the Prime Minister and Speaker on account of
unique oflice-Placin~ the statutes in the protected Schedule under A rt. 31-11
dues not offend A rt: 14.
H
A
B
c
D
E
348
SUPREME COURT REPORTS
(1976] 2 S.C.R.
Pl<'adi11g alld Eridc11ce in Election petitions-A//egatio11 of corrupt practices. 8.3( I) (b) and 123 of the Representatio11 of the People Act-lllsufficie11t
pa111culars of corrupt practice-No amount of 1·ridencc b.e iooked into a case
11ot really set up.
Adverse inference, presumptio11 Of S. 114 illustration (g) of the Evidence Act
(Act !), 1872-Presumptio11 is always optional and one of fact and 1101 obliga•
tory.
Conclusive Proof-Gazette notificatio11 of appointment suspensio'n, retirement
or resignatio11 of Government employees-Cl. 8 of the Election Laws Amendmott Act 40 of 1975.
Interpretation df Statutes-Rule of construction of provisio11 widely worded.
Review Appl/cation--Order XXXVlll Supreme Court Rules 1966 read with
order XLV!l Rule 1 C.P.C.-Fai/ure to make a submission is not a ground 101·
reopening or review of a case.
D111y-Cou11se/'s duty while arguing a case, one of law and facts-What is.
Pursuant to the Notification dated January 27, 1971 u/s 14(2) of the Representation of the People Act. 1951, Smt. Indira :Nehru Gandhi, the appellant
filed her nomination papers on February 1. 1971 before February 3, 1971,
the last date therefor fixed by the Election Commission for Rae Barely constituency.
The appellant was for a number of years before the election, Prime
Minister of Tndia and is since then continuing to hold that office.
On
his
resignation w.e.f. 14-1-1971 the notification of which was gazetted on 25-1-1971
from the post of officer on special duty in the . Prime Minister's Secretariat
Yashpal Kapur was appointed the election agent of the appellant.
The signed
form about the appointment of Yashpal Kapur as an election agent was submitted
to the Returning Officer on February 4, 1971 the date of scrutiny. The r,ppellant, who was a candidate of the Indian National Congress (R) ""' allotted
the party symbol of "Cow and Calf".
As per the poll results declared on March 10, 1971, the appellant was elected to the House of the People by an overwhelming majority of 1,11,810 votes
over her close rival, Shri Raj Narain, a Samyukta Socialist Party Leader. Shri
Raj Narain filed an election petition on 24-4-1971 under s. 80 read with s. 100
of the Representation of the People Act, 1951 to challenge the election of the
successful returned candidate before the High Court of Allahabad. At the trial
of the petition, the petitioner limited. the challenge only to the following grounds
F
viz.,
G
H
(i) The successful candidate procured the assistance of' the Armed
Forces for ar.tanging her flights by Air Force aeroplanes
and
helicopters.
(ii) Her election agent Shri Yashpal Kapoqr and others distributed
clothes and liquor to induce the voters to vote for her.
(iii)
(iv)
(v)
(vi)
(vii)
She and her election, agent made appeals to the religious symbol
of "cow and calf".
Her election agent and others proenred vehicles for the free
conveyance of voters to the polling station.
.
She and her election agent incurred or authorised expenditure
in violation of s. 77(3) of the Rewesentation of the People Act
read with Rule 90 of the Conduct of Election Laws, 1961.
She obtained assistance of the Gazetted Officers of the ·Government of Uttar Pradesh for fnrlhering her election prospects by
rostrums and providing loudspeakers etc. and
She held herself out as a prospective candidate £rom the Rae
Barely Constituency immediately after the dit!solution of
the
•
~
\
f
~··
f
•
SMT. INDIRA GANDHI V. RAJ NARAIN
349
Lok Sabha on 27-12-1970 and for furtherance of her election
rrospects, she obtained the assistance of Shri Yashpal Kapoor
a Gazetted Officer in the Government of India holding the post
of' officer on special duty in the Prime Minister's Secretariat
for furthering the same purpose.
The learned single Judge
of the High Court found the appellant guilty of having committed corrupt practices within the meaning of s. 123 (7) of the
Representation of the Peopl·e Act and held
( l) The appellant held herself out as a candidate from the
Rae Bareily Parliamentary Constituency on December 29, 1970.
( 2) The appellant obtained the assistance of the officers of the
Government of U.P., particularly the Dist. Magistrate, superintendent of Police, the Executive Engineer (PWD) and the Engineer Hyde! Dept. for construction of rostrums and arrangement
of <;\Jpplv of power to loudspeakers in the meetings held on
l-2-197 l ,- and 25-2-1971 in f[irtherance of her election prospects
and
(3) The status of YashpaJ Kapur continued to be that of a
gazetted officer despite retrospective acceptance of the resignation and hence she obtained his services in furtherance oi' her
election prospect.
A
B
c
Acting under s. SA of the Act, the learned Judge also declared that the successD
ful candidate would stand disqualified for a. period of six years from June 12,
1975 being the date of the judgment. Aggrieved by this part of the Judgment,
Smt. Indira Nehru Gandhi filed an appeal No. 887 of 1975 and the defeated
candidate filed cross-appeal No. 909 of 1975.
During the pendency of the election petition in the: High Court, the President
of India on October 19, 1974 promulgated "The Representation oi' the People
!Amendment) Ordinance, 1974" which was replaced by Act 58 of 1974.
The Representation of the People (Amendment Act 58) of 1974 by way of
an explanation to s. 77 of the Act laid down that expenses incurred by a political party or supporte'rs would not be deemed to be election expenditure of a
candidate belonging to that party.
lt expressly excepted from its operation
decision of the Supreme Court voiding an election before the commencement of
the Ordinance.
Jt also excepted similar decisions of High Court provided they
had become final or unappealable.
The defeated candidate filed a Writ Petition No. 3761 of 1975 in the High
Court to challenge the constitutional validity of the Ordinance of 1974. ln
view of the finding in the election petition that the total amount of expendiure
incurred or authorised by the successful candidate Qr her election agent together
with the amount proved to have been incurred by the political party or the State
Government in connection with the election did not exceed the prescribed limit,
the learned judge though it unnecessary to inquire into the constitutionality
of the Ordinance and the Act of 1.974 and thus, dismissed the Writ Petition.
An appeal was filed to a Division Bench of the High Court from the aforesaid
order but by the consent of parties. the points _involved in the Writ Petition
and in the appeal before the Division Bench of the Allahabad High Court were
permitted to be argued in this Court, in the appeal and cross-appeal.
During 1he pendency of these appeals the Parliament passed the Election
Laws (Amendment) Act 40 of 1975 which came into force on August 6, 1975.
It substitutes a new S. 8A in the Representation of the People Act, 1951 em·
powering the President to decide where a person found guilty of corrupt practice shall be disqualified and if so, for what pelriod.
By s. 6 it amends s. 77
of the Act of 1951 making pre-nomination expenses, a matter of irrelevant
consideration. It declares that the expenditure incurred by a Government ser·
vant in the discharge of his official duty in connection with any arrangement or
I
E
F
G
II
A
B
c
D
E
F
G
H
350
SUPREME COURT REPORTS
(1976] 2 S.C.R.
facilities and such arrangements or facilities shall not be deemed to be expenditum or assistance incurred or rendered for tbe furtherance of the election prospects of the candidate concerned. By s. 7 it redefines a candidate to mean a
person who has been or claims to have been duly nominated as a candidate in
any election.
lly s. 8 it provides that no 9ymbol allotted to a candidate shall be
deemed to be a religious or national symbol and it says to extent relevant that
the publication in the official gazette of the resignation of the government servant shall be conclusive proof of the fact of resignation. lf the effective date,
of resignation is stated in the publication, it shall also be a conclus·ive proof
of- the fact that the Government servant ceases to be in service with effect
from the particular date. The amendments made by ss. 5, 6, 7 and 8 of the
Amending Act have retrospective effect and expressly govern election . appeals
pending in this Court among other proceedings.
By the Constitution ( 39lh Amendment) which came into force on August
10, 1975 two new Articles in the Constitution, namely, Art. 71 and 329A were
introduced. This Act puts in the 9lh Schedule three Acts, namely, (1) The
Representation of the People Act (Act 43) of 195l.; (2) The Representation
of the People (Amending Act 58) of 1974 and (3) The Election Laws (Amendment Act) 4() of 1975. Article 71 which replaces its precursor empowers the
Parliament to pass law9 regulating the election of the President and the Vice
President including the making of a provision for the decision of disputes relating to these elections. Art. 329A has six clauses out of which the first three
d~al with the future election to the Parliament of persons holding the office of
Prime Minister or Speaker at the time of election or who are appointed to these
offices after the election to the Parliament.· These clauses aim at depriving the
courts of their jmisdiction to try election petitions in which the election of the
Prime Minister or tbe SP.eaker to the Parliament is challenged.
Clause 4 frees
the disputed election of the Prime Minister and the Speaker to the Parliament
from the resu·aints of all election laws. It declares snch election ag valid notwithstanding any judgment and clause 5 ordains that any appeal dr cross-appeal
pending before the Supreme Court shall be disposed of on the assumption that
judgment under appeal is void, that the findings contained in the jud,gment
never had· any existence in the eye of law and tbe election declared void by
judgment shall continue to be valid in all respects. Clause 6 provides that Art.
329A shall have precedence over the rest of the Constitution.
This Court held by a majority of 7 to 6 in the case of His Holiness
Kcsavmvmda Bharati v. State of Kera/a, that the power of amendment under
Art. 368 does not enable Parliament to alter the basic structure or framework
of th·e Constitution.
As to what are the basic structLrres of the Constitution, illustrations have
been given by each of these. Judges. They include democratic republican form
of the Government, Secular character of the Constitution, separation of powers
among the legislature. executive and judiciary, the federal character of the O:mstitution; Rule of Law, Equality of status and of opportunity; Justice,
Soda!,
Economic and political; Unity and integrity of the nation aud the dignity of the
individual secured by the various provisions of the Constitution. There was
consensus among these judges that democracy is a basic structure of the Constitution. This Court further was of the unanimous view in Bharati's case that
Art. 31-B is not open lo challenge. The view of the seven judge< in Bharati's
case is that Art. 31-B is a constitutional device to place the specified statutes in
ihe Schedule beyond any attack that these infringe Part HI of the Constitution.
•
l
·~
•
Placiug reliance on the majority view in Bharati'9 case and on the ground
that some of the basic stmctures of the Constitutio1\ have been damaged by the
ienactment and that they were beyond the amending power under Art. 368 the
respondent challenged the constitutional validity of the
Constitution
(39th
>
Amendment) Act, 1975 and tbe Election Laws (Amendment) Act 40 of 1975.
Accepting the appeal and dismissing the cross-appeal· the Court.
HELD : (By Court) Constitutional validity of the Acts cannot be challenged
on the score that a number of members of Parliament were in detention under
the Preventive detention laws. The legality of the detention orders c:timot be
canvassed collaterally. [355F, 461F, 5340-E; 587A-G, 670H, 671A]
I
f
..
SMT. INDIRA GANDHI V. RAJ NARAIN
351
May's Parliamentary Practice 18th Edn.; Bradlaugh v. Gosett 12 9.B.D. 27
A
·@ 285-86; K. Ana11da11 Na.inbiar v. The Chief Secretary to Gdvt. of Madras
[1966} 2 S.C.R. 406.
Per Majority (Khanna, Mathew and Chandrachud. JJ.)
Cl.
4
of Art.
329A as introduced by the Constitution (Thirty Ninth Amendment) Act, 1975
is unconstitution. [474D, 525E, 665B-E]
Per C.J.
Clause 4 of Art. 329A in the present case inv3:lida!ing the electi<?n
has passed a declaratory Judgment and not a law. The legislative Judgment .m
B.
Cl. 4 is an exercise of judicial power. The conslituent power can exercise
judicial power, but it has to apply law. [ 418F]
Per Beg J.
Undoubtedly Cl. (4) of Art. 329A could be said to have a
political objective in the context in which it was introduced and the comt CQltld
perhaps take judicial notice of this context.
If the purpose of Clause 4 of Art.
329A was purely to meet the political needs of the country and was only partly
revealed by the policy underlying the Statement of object and reasons, it
seems possible to contend that it was not intended at all to oust the jurisdicC
tion · of the court.
Hence, Art. 329A Cl. 5 will not so understood, bar the
j llrisd iction of the Court to hear and decide the appeals. when it says that t'he
appeal shall be disposed of in conformity with the provisons of Cl. ( 4) [644H, 645A-B]
(Per C.J., Khanna a11d Beg, JJ.) (iii) The "Cow and Calf" symbol is not
a religious symbol. [443G-H, 480H, 578F-Gl
By Court (Unanimous) The Election Laws (Amendment Act 40) 1975
is
valid. [437E-G, 488E, 536C, 587A-G, 669GJ
(Per Khanna, Mathew &. Beg JJ.)
The corrupt practice defined in S. 123(7) could not be committed by any
person before there was a "candidate" for an election. [476F, 535E-F, 547E]
·Per C.J. Candidate is not required to disavow or
denounce
expenditure,
incurred by a political party. [433-A]
Per C.J. & Khanna J. Official duty will be a duty in law. [44IEF, 480ABJ
By Court : Retrospective legislation of election law is valid. [418E, 481CD, 482 A-B, 530 D-G]
Per C. J. There is no vice of delegation in the Statutes. [442AJ
Mathew J. (Contra) Cl. 8(b) of the Election Laws Amendment Act does
not suffer from the vice of excessive delegation and is not arbitrary. [536C]
Per Ray C.J.
Judicial Review in an electio'n petition is not a conipu/sion.
(i) Judicial Review in many mattern under statute may be excluded.
In
many cases special jurisdiction is created to deal with matters assigned to
such authorities. A Special forum is even created to have election disputes.
A right of appeal may be conferred against such decision.
If Parliament acts
D
E
F
as •the forn111 for determination of election disputes, it may be a question of
Parliamentary privilege and the courts may not entertain any review from suchJ
decisions.. That is because the exercise of power by the Legislature in deterC.
mining disputed elections may be called legislative power. A distinction arises
between what can be called the traditional judicial determination by courts
and tribunals on the one hand and the peculiar jurisdiction by the legislature in
determining . controverted election on the other. [410D-F]
American Constitution Art.1 Sec. 5(2); German Federal· Republic C6nstitu-
. lion; Australian Constitution; Grenvile Act 1868; English Representation of
People Act. 1949; Story on American Constitution: Corpus Juris Vo]. 16(1956)
& Vol 29(1965); Taylor v. Beckham'44 L, Ed. 547 p.585; Truman H. Newbery
U
v. U$.A. 65 L. Ed. 913; David S. Barry v. The U.S.A. Ex Rel Thomas W.
Cunningham 73 L. Ed. 867 Charles W. Baker v. Joe C.
Carr 7 L.Ed. 663.
Julian Bond v. James Slopper Floyd 17 L. Ed. 2nd 235 Adam Clayton Powell
v. John W. McCormack 23 L. Ed. 491. (Considered)
.A
B
·C
D
F
G
H
352
SUPREME COURT REPORTS
(1976) 2 S.C.R.
. (ii) The legal order is a sysrem of genera\ and individual norms connected
with each other according to the principle that Jaw regulates its own creation.
Creatio1_1 of_ law is an application of law. The creation of a legal norm is normaJly
an apphcat101! of the h\gher norm, regulating its creation.
The application of
~1g~~r norn~ .1s t~e creation of a'. !ower norm determined by the higher norm. A
JUd1crnl dec1s1on is an. act by which a general. norm, a statute, is applied but at
the same time an individual norm is created binding one or both parties to the
conflict.
Legislation is creation of law.
Taking it into a court is application
of Jaw.
The higher norm may determine the organ and the Procedure by
which a lower norrm and the contents of the lower norm are created.
The
judicial function is like legislation both creation and application of law
and is ordinarily determined by the general norms both as to procedure and as
to the contents of the norm to be created. whereas Jegislation is
usually
determined by the constitution only in the former aspect. [4 IOF-H, 411-Cl
Judicial Review is not to be fotmded on any Article in our Constitution unlike
the American or the Australian Constitutions. [414F]
Judicial review in the election disputes is not a compulsion.
Judicial Review
of decisions in election disputes may be enlrusted by Jaw to a judicial tribunal.
If it. is to a Tribunal or to the High Court. the Judicial Review will be attracted
either under the relevant law providing for appeal to this court or Art. 136 of
the Constitution may be attracted.
Under Art.
329(b) the contemplated Jaw
may vest thei, power to entertain election petitions in the House itself which may
determine the dispute by a resolution after receiving a report from a special
committee.
Jn such cases Judicial review may be eliminated without involving
amendment of the Constitution.
The Constitution permits by amendment exc.Jusion of judicial review of a matter if it is necessary to give effect to the
Directive Priniciples of Slate Policy.
A similar power may be available in the
larger interest of the security of the State.
In either case. the exc]usian
of
judicial review does not mean that pi:incinles of equality are violated. It only
means that the appropriate body making the law satisfied itself and determines
conclusivelv that principles of equality have not been violated.
Tf judicial
review is excluded the court is not in a position to conclude that the principles
of equality has heen violated.
Art. 33
excludes
judicial review in matter>
relating to the Armed Fo,rces.
Art. 262(2) excludes. jurisdiction of court>
in
water disputes.
The Amending body has similarly excluded judicial review
in Articles 31A. 31B and 31C.
[416BE. G]
"Audi A/teram Partem-Rule of-App/icabilit)' to le!?islative processes.
The legislature is entitled
kgislature may can witnesses.
cable to a legislative process.
to obtain information from any source.
The
The rule of Audi Alteram Partem is not appli-
[415H, 416A]
Exclusio11 of the operation of the equalitv principle from some fields is
co11.1tit11tio11ally possible.
Equality of status as well as equality of opportunity is a fundamental right
in Art. 14
and
16 of the Constitution, which means equality before law and
equal protection of the laws.
Equality is spoken in the Preamble. There is
liberty to legislature to classify to establish equality. When Art. 3 IA and 31B
eliminated judicial review the meaning was not that the legislature would go
on discriminating. The task of classification can be left to the legislature.
It
is the· very nature of legislation that cfassification must be in public interest.
Exclusion of the operation of the equality principle from some fields is
constitutionally possible. [416E-G]
There is 110 q11estio11 of c.ny separation of powers beillf? invo/l"ed i11 clcctio11
nu:.ilters.
In our constitution there is separatfon of powers in a broad sense .. The
doctrine of separation' of powers as recognised in America. is not app\icable
to our country.
Hence, the larger question wh~ther there !S any doctrine of
separation of p0wers, when it comes to exercise of constituent power does
not arir1e. [414G-HI
I
1
SMT. INDIRA GANDHI V. RAJ NARAIN
In re. Del/ii Laws Act [1951] SCR 747 @ 965-66; Jayantilal Sodhan
V,
A
R. N. Raina [1964} 5 SCR
294;
Chatldra Mohan v. State of U.P. & Ors ..
[1967] I SCR 77 @ 87 and Udai Ram Sharma and Ors.
etc. v. U11io11 of J11di1J
and Ors. (1968J 3 SCR 41 & 67 (referred to).
Many powers which are strictly judicial have been excluded from the Purview of the courts.
Under our constitution. Parliament has inherited all the
privileges, powers and immunities of the British HouSe of Comm0ns. In the
case of election disputes Parliament has defined the procedure by Jaw.
It can
at any time change that procedure and take over itself the whole question. There
S
is, therefore, no question of_ any separation of powers being involved in matters
concerning elections and election petitions. [415B-C]
J11lia11 Bond v. John S/opper Floyd 17 L. Edn. Adam Clayton Powell v.
Jolin W. McCormack 23 L. Eda. 491 (referred to).
"Legislature is cvmpcle111 to validate matters. fo1111d to he i11w1Ud by cour/J
by c!1a11ging the law''
The power of the legislature to validate mailers which have been found by
judgment or orders of competent courts and Tribunals to be invalid or illegal
is a well known pattern. The legislature validates acts and things by which the
basis of judgments or order of competent courts and tribunals is changed and
the judgments and orders are made ineffective.
The effect of validation is to
chan~ the law so as to alter the basis of any judgment which might have been
given on the basis of old law.
The rendering of the judgment ineffective by
changing its basis by legislative enactment is not an encroachment on judicial
power, but a legislation within the competence of the Legislature rendering the
basis of the judgment non-est.
Where invalid elections declared by reason of
corrupt practice have been validated by changing the definition
Qf
corrupt
practices in the Representation of the People Act. 1951. retrospectively, the
original judgment is rendered ineffective. [412D, E-F, 4 I 3A-B]
Kanta Kathuria v. Manak Chand Surmw, (1970] 2 S.C.R. 830 (relied on).
Abe)·a Sekma v . .layahilake [1932] A.C. 260, Basa11thc• Chandra Chose v.
c
D
The King Emperor [1944] F.C.R. 225, Piare D11sad/1 & Ors. v. King Emperor
E
[f944J F.C.R. 81, referred to.
Constit11e111 Power is "sui generis". It can exercise judicial power but it has
to apply law.
·
The constituent powers is "sui generis". It is different from legislative power
The position of unlimited Jaw making power is the criterion of legal sovereignty.
The .:onstituent power is sovereign because the Constitution flows from the
Constituent power.
When the constituent nower exercises powers, the constituent
F
power comprises legislative, executive and ludicial powers.
All powers flow from
the constituent power through the constitution, to the various departments or
heads.
Jn the hands of the constituent authority there is no demarcation of
powers. The Constituent power is independent of the doctrine of separation of
powers and sovereign.
Jt is the power which creates the organs and distributes
the powers.
There is no doubt, that the constituent power i9 not the same as
le-gislative. power and legislative power is always to be borne in mind because
!he constituent power is higher in norm. The constituent power is not the same
as ordinary law making power.
The constituent power is sovereign.
The
G
constituent power can exercise judicial power. but it has to apply law. [410E,
C-D. 416A, 4180, Fl
The concept of free and fair election is 1101 a basic structure.
The concep~ of free and fair election is worked out by the Representation
of the People Act.
The Act provides a definition of "corrupt practice" for the
guidance of the court. In making !he law the legislature acts on the concept of free and fair election. In any legislation relating to the validity of election.
the \;"Oncept of free and fair elections is an important consideration.
In the
process of election the concept
of free and fair election is worked out
by
formulatinit the principles of franchise. and the free exercise of franchise.
In cases of disputes as to election the concept of free and fair elections means
1-1
354
SUPREME COURT REPORTS
[1976] 2 'S.C.R.
A
that dispt~tes are fa!rlY and justly decided.
Electoral offences are statutory
ones. . It 1s not possible to hold that the concept of free and fair election is
a basic structure.
Some people may advocate
universal
franchise.
Some
people. may adv.ocate proportional representation.
Some people may advocate
edue.al!onal qua!Jficat10ns for voters. Some P.eople may advocate property qualifications for voters.
Instances can be mult1phed on divergence of views
in
regard to qualifications for voters, qualifications of members, forms of corrupt
practices. Th:lt is why there is law relating to and regulating elections.
[416H,
B
417A-C]
c
D
E
F
G
H
Infirmities in Cl. (4) of Art. 329A-Rule of law is of]ended.
Cbuse 4 in Art. 329A has done four things, first it has wipe<.! out not
merely the judgment but also the election petition and the law relating ~hereto.
Secondly, it has deprived the right to raise a dispute about the validity of the
election by not having provided another forum.
Third, there is no judgment
to deal with and no right or dispute to adjudicate upon. Fourth, the constituent
power of its own legislative judgment has validated the el~ction. [ 417C-D]
· Clause ( 4) suffers from these infirmities. First, the forum might be
chaaged but another forum has to be creared. If the constituent power became
itself the forum to decide the disputes the constituent power by repealing the
law in relation to election petitions and matters connected therewith did not
have any petition to seize upon
to deal withthe
same.
Secondly,
any
decision is to be made in accordance with law.
Parliament has
power
to
create law and apply the same. In the present case, the constituent power did
not have any law to apply to the case, because the previous law did not apply
and no other law was applied to clause (4). , The validation of the election in
the pre5'ent case is, therefore, not by applying any law and it, therefore offends
Rule of .Jaw. [417H, 418A-B]
It is true that no express mention is made in our constitution of vesting the
judiciary the judicial power as is to be found in the American constitution. But
a division of the three main functions of Government is recogni§cd in
our
constitution; judicial power in the sense of the judicial power of the state i9
vested in the judiciary. Similarly, the Executive and the Legislature are vested
with powers in thei.r spheres.
Judicial power bas lain in the hands of the
judiciary prior to the constitution and .. aJso since the constitution. It is not
the intention that the powers of the Judiciary should be passed to or be shared
by the Executive or the legislature or that the powers of the Legislature or the
Executive should pass to or be shared by the Judiciary. [418B-D]
Ref1·ospective Legislation not by itself discrimination
The constituent power is 90verei'gn.
Law-making power is subject to the
constitution. Parliament mav create a forum to· bear or itself hear the election
disputes. Whichever body Will hear election disputes will have to apply norms.
Norms are legal standards. There is no discrimination, if classification on rational basis is made for determination of disputes relating to persons hold~g the
office of the Prime Minister or the Speaker. The changes effected by the
Amendment Acts 1974 and 1975 apply to all an<l there is no discrimination.
Retrospective legislation is not by itself discrimination.
[4180-E]
Clause (4) of Art. 329A in the present case invalidating the election has
passed a declarat01y judgment and not a law. The legislative judgment in clause
4 is an exercise of judicial power. The constituent power can exercise judicial
power but it has to apply law. r418F]
The validation of the election is not by applying legal norms.
Nor can
it be said !'hat the validation of election in clause 4 is by norms set up by the
Constituent power. [418G]
Clause 5 in Art. 329A shows that an appeal against any order of any
court referred to in clause 4 pending, before the commencement of the Constitution (Thirty.ninth Amendment) Act, 1975, before the Supreme Court, shall
\
'"
)
"
SMT. INDIRA GANDHI V. RAJ NARAIN
355
be disposed of in conformity with the provisions of clause 4.
The appeal cannot be disposed of in conformity with the provisions of clause 4 inasmuch
at !he validation of lhe election cannot rest on clause 4. [4l8HJ
"The Election Lall"s (Amendment) Act 40, 1975 and Constillltion (Thirty11i11th Amendment) Act, 1975 cannot be challenged on the ground that there
was no valid session of 1/te House as a number of members of Parliament were
in detention and were prevenled from taking deliberations in tile Pai"liament."
· (1) When a member is excluded from participation in the proceedings of
the House, that is a nrntter concerning the Parliament and the grievances
of
exclusion is in regarJ to proceedings within ~he walls of Parliament. In regard
to rights to be exercised within the walls of the House, the House itself is the
judge. (420 A-BJ
. May's Parliamentary Practice 18th Edn. pp. s2:s3 Draudlaugh v. Gossett 12
Q.B.D. 271 & 285-286.
In re. Farrers (1543).
In re. Shirley I Jiatsell 157,
English Act J: James I C 13' (Considered).
The composition of Pmliament is not dependent on inability of a member
to attend for whatsoever reason.
The purpose of Art. 85. is to give effect to the
collective right of ~he House which represents the nation to be called as often
as the situation demands, and in any case the interval between two sessions must
not exceed six months.
Assuming a conftic! were to arise between the privileges of a member under Art. 105(3) and the functions of the House to assemble
under Art. 85 the privilege .of the member .wi!J not prevail.
The Constitution
provides for proclamation of emergen~y. the suspension of the remedy under
Art. 359 for enforcement of fundamental rights enabling even . detention
of
members of Parliament, when necessary.
Art. 85 is not suspended.
The six
months rule is obligatory. It follows that the members' right under Art. 105 (3)
and the functions of the House to assemble under Art. 85 the privilege Of the
member will not prevail.
The det>ention of members of Parliament is by
a
statutory authority in the exercise of his statutory powers.
It follows
that
member~· right under Art. 105 are not availablelunder a detention in these circumstances.
For the purposes of Art. 105(3) a conviction under Penal laws
or detention under Emergency laws must be deemed to be valid till it is set aside.
(421 B-C, E]
When under Art. 359, the Presiden' during the operation of a Proclamation
of Emergency by order declares that the right to move any court for the enforcement of rights conferred by Part III shall remain suspended and persons who
· are members of House of Parliament are in detention under orders made under
the Maintenance of Internal Security Act, the detention cannot be challenged
by collateral attack on the ground of deprivation of their participation in the
Parliamentary proceedings.
The challenge will be questioning the detention on
the ground that the detention is in violation of Artid~s 19, 21 and 22.
·
[421F-Gl
Art. 85 is not a prov1Sion regarding the Constitution of Parliament, but of
holding session.
The scope of Parliamentary privilege of freedom· from arrest
has been defined positively and negatively.
The positive aspect of the privile11e
is expressed in the claim of the Commons to freedom from arrest in all civil
actions or suits during Parliament. and during tbe period when a member was
journeying or returning from Parliament.
The privilege
has
been
deprived
negatively in the claim of the Commons which specifically excepted
treason,
fulony and breach or surety or the peace. The House will not allow even the
sanctuary of its walls to protect a member from the process of criminal Jaw
aHhough a service of a criminal process on a Member within the precincts of
Parliament, whilst the House is sitting without obtaining the leave of the Home,
would be a breach of privilege. [421H, 422B-C, F-GJ
Mays' Parliamentary Practice 18th E<ln. pp. 82-83 Braudlaugh v.
Gosset 12 Q.B.D. 271 @ 285-86. In re. Shirley's Halsell 157; English
Act I James I C 13; Constitntion of India A1is. 18. 21, 22. 79, 81, 85,
105(3) 122(1) and 359; Special Reference No. 1 of 1964, [1965] 1
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
356
SUPREME COURT REPORTS
(1976) 2 S.C.R.
S.C.R. 413: In rP. Wilke., 19 State Tr. 981; Defence General Regulation 1939. Emergency (Defence) Act 1939 English; Defence of India
Rules 1962 Rule 30(1)(2) (referred to).
Arl>. 79, 81, 85, 86, I 00 cannot be construed to confer any right as such
on individual Members or impose any· obligation on them. It is not as if
a
Member of Parliament is bound to attend the session or is under an obligatio11
to be present in the House, when the President addresses it. The context in
which these Articles appear shows that the subject matter of these Articles is not
the individual righls of the Members of Parliament, but they refer to the right
of the President to· issue a summon' for the ensuring session of Parliament or
to address the House or Houses.
The freedom of speech to which Article t05
refers would be available to a Member of Parliament, when he attends
the
Session of Parliament.
If the order of detention validly prevents him from
attending a session of Parliament no occasion arises for the exercise of the right
of freedom of speech and no complaint can b~ made that the said right has
invalidly invaded. [424B-D]
-
1\. A11a11dan Nambiar & Anr.
v.
The Chief Secretarv, r.01•er11111e11t of
Madras and Ors., rJ966l 2 S.C.R. 406 (relied on).
The challenge that there was no \'alid session of the House. cannot
be
accepted.
It is not open to the respondents to challenge the orde1:s of detention
collaterally. The principle is that what is direclly forbidden cannot be indireC'ly
achieved. [424Dl
A cc.ndidate is 1101 required to diSa\'011' or denounce expenditure incurred or
authorised hy a po/it/m/ part:·.
Election expenses incurred by a political party in connection with the election of the candidate of the party is not a part of the election expenses of the
candidates.
Similarly. participation in the programme of activity organised by
a political party will nol fall within the expenses of candidate of the party.
A
candidate is not required to disavow or. denounce the expenditure incurred or
authorised by the political party because the expenditure is neither incurred nor
authorise by the candidate.
One can disavow what would be a'cribcd to be
incurred or authorised by one. In the case of expenses of a political party, there
is no quo,.lion of disavowing expenditure incurred or authorised by the political
party.
As per the changes in law affected by the Amendment Acts. 1974, 1975
to Section 77 of the t 961 Act the exnenditure incurred or authorised in connection with the election of a candidate by the political party shall not be deemed
to be &nd shall not ever be deemed to have been expenditure incurred O"
authorised by the candidate or his election agent.
The ruling in Kanwar Lal
Gupta's case is no longer good law because of the legislative changes.
[432H,
433A-B. 430H,. 431AB1
Ka111rar Lal G11,.ta v. Amamath Chawla. A.LR. 1975 S.C. 308 (no longer
good law); flam Raj v. Pt., Tlari Ram and Ors. 40 ELR 1125; S/w/1 Ja.rnntilal
Ambalal \'. Kast11rilal Nagindas Doshi and Ors. 42. ELR 307; Rwrania)'a Singh
v. Baijnath Singh J: Ors. [19551 1 SCR, 671; Ram Dayal v. Briirai Singh and
Ors. [1970] 1 S.C.R. 530; Mag Raj Patadia v. R. K. Bir/a and On. f 19711 (2)
S.C.R. 118.
(discussed).
"Authorisation in S.
77
of the Represe11rario11 of the l'cor>le Act
1951
r<:q11ires proof".
1\llegations that election expenses arc incurred or auihoriscd by a candidate
or bis agent will have to be proved.
Authorisation means acceptance of the
responsibility.
Authorisation
must
precede
the
expenditure.
Authorisation
means reimbursement by the candidate or election agent of the person who has
been authorised by the candidate or by the elec!ion agent to spend m !ncur. In
onkr to constitute authorisation the effect must be that the authonty must
cany with it the right of reimbursement. [433F-G]
"Rosie Structure Theory"
The contentions that ordinary legislative measl!res are suhie.:;t like ~onstitu
tion mncnuments ta the restrictions of not damaging or t.lestroy111g ba"c struc-
\
'~
•
\,
'f
I
.,
•
.. '
• l
SMT. INDIRA GANDI-ll V. RAJ NARAIN
357
ture or basic features are utterly unsound. The contention that legislative meaA
sures are subject to restrictions of Nie ilieory of basic structures or basic features
is to equate legislative measures with constitution amendment.
[436A,B]
Art. 245 and 246 give plenary powers to legislature to legislate. The power
of plenary body is not to be construed like the power to delegate.
The only
prohibition is with reference to the provisions of the constituiion.
The Constitution is the conclusive instrument by which powers are affirmatively created
or negatively restricted. The only relevant test for the validity of a statute
B
made under Art.