Civil Appeal Nos
NCE 1044  1045 of 1991
From the Judgement and Order dated 29101990 of the Bombay High Court in Election Petition No5 of 1990
KK Venugopal Harish Salve PH Parekh Sunil Dogra VD Joshi and AM Khanwilkar for the Appellants
AS Bobde VA Bobde SD Mudliar CK Ratnaparkhi BP Pandye and Mrs Nirmal Chhagan for the Respondent
The Judgement of the Court was delivered by SAWANT J These two petitions arise out of a common order dated 29th October 1990 passed by the Bombay High Court in Election Petition No 5 of 1990 and raise a common question of law
Hence they are disposed of by this judgement
Leave is granted in both the petitions
The election petition in which the impugned order is passed was filed by a defeated candidate Respondent No1 against the elected candidate Respondent No2 and other contesting candidates challenging the validity of the election of respondent No2 to the Lok Sabha from the Bombay South Central Constituency in the election held on November 24 1989
The election of respondent No2 is challenged in the petition among other things on the ground of corrupt practices under sub sections 2 3 and 3A of Section 123 of the Representation of the People Act 1951 hereinafter referred to as the Act
It appears from the impugned order that the High Court has reached a stage in the trial of the election petition where examination in chief and cross examination of about 14 witnesses has been completed and various documents have been brought on record
It is at this stage that the impugned order has been made the operative part of which reads as follows 762 In this Election Petition the Petitioner seeks to set aside the election of Respondent No1 on the ground of corrupt practice under Sections 1233 and 1233A of the said Act
The Petitioner has led documentary and oral evidence
Respondent No1 has tendered documents but has led no oral evidence
The other Respondents have remained absent even though served
Petitioner and Respondent No1 have argued their respective cases
The learned Advocate General has also drawn my attention to Section 99 of the said Act which requires this Court whilst giving a finding that corrupt practice has been proved to name all persons who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice
This however must be after having given to such persons notice to appear and show cause why hethey should not be so named
At this stage I am of the prima facie opinion that the charges alleged in the Petition of corrupt practice under Section 1233 and 1233A of the said Act have been proved to have been committed and that Mr Bal Thackeray Mr Chhagan Bhujbal and Mr Manohar Joshi Are to use the words of Supreme Court collaborators in such corrupt practice
Accordingly I direct that notices under Section 99 of the Representation of the People Act 1951 shall be given to Mr Bal Thackeray Mr Chhagan Bhujbal and Mr Manohar Joshi to appear before me on 3rd December 1990 to show cause why they should be not be so named in the order on the Election Petition
Each notice shall state that the person named in the notice shall have an opportunity of cross examining all witnesses who have given evidence against him and that he shall have a right of calling evidence and of being heard
I direct that to all the notices shall be annexed photo copies of a the Petition the written statement of Respondent No1 and the Issues
763 b the oral depositions of the petitioners witnesses
c all exhibits except Exhibits RR SS to YY AAA AAA1 AAAA BBBB BBBB1 and Exhibits 1 to 8
d this order
I also direct that along with all the notices shall be sent audio cassettes containing copies of Exhibits SS to YY
 Aggrieved by this order two of the persons named therein viz Manohar Joshi and Chhagan Bhujbal have approached his Court by way of these two separate appeals by special leave
The order is assailed on the ground that although it directs the issuance of notice to the appellants to answer allegations of corrupt practices allegedly committed by them it is vague and does not indicate which of the corrupt practices they are alleged to have committed and which evidence on record supports them
In the absence of the specific charges and the evidence in support of itthem indicated in the order and the notices issued pursuant to it the appellants are at a loss to comprehend the case that they are called upon to meet
They are thus put to a disadvantage and are gravely prejudiced
It is pointed out that the consequences of naming a person on his being found guilty pursuant to such notice are grave inasmuch as among other things he incurs a disqualification for contesting election under Article 103 of the Constitution read with Section 8A of the Act
It is also urged that even otherwise the notice to appear and the opportunity to show cause contemplated under the proviso to sub section 1 of Section 99 of the Act enjoins upon the Court to state precisely the charge and the evidence which the person summoned is called upon to meet
It does not contemplate a vague notice such as the one which is issued and is directed to be issued by the impugned order
For reasons more than one we find great force in these submissions
Shri Bobde the learned Advocate General of Maharashtra who appeared for respondent No1 could not seriously dispute these contentions
However he pointed out to us an earlier order dated December 1 1988 of this Court passed in Special Leave Petition No 13163 of 1988 which was filed against a similar order passed by the Bombay High Court in Election Petition No1 of 1988
This Court by its said order had held as follows 764 We do not think that in a notice under Section 99 of the Representation of the People Act 1951 the portions of the speeches of the petitioner are required to be specific for the purpose of sub sections 3 and 3A of Section 123 of the said act
The petitioner however will be at liberty to make an application before the Court for specifying those portions which Prima facie according to the Court come within the purview of sub sections 3 or 3A of Section 123 of the said Act
If any such application is made the Court will dispose of it in accordance with law
The special leave petition is disposed of accordingly
 The provisions of the Act which have a cumulative bearing on the present question are contained in sections 82 83 97 98 99 107 1233 and 1233A of the Act
Section 82 enjoins upon the election petitioner to join as respondent to the petition in addition to other necessary parties any candidate against whom allegations of any corrupt practice are made in the petition
Section 83 which deals with the contents of the election petition states among other things as follows 83
Contents of petition 1 An election petition a         b shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and c       
Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof
2 Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition
 765 It is clear from the reading of these two sections that even in the election petition where allegations of corrupt practices are made full particulars of the alleged corrupt practice including as fuller a statement as possible and the names of the parties who are alleged to have committed such practice and the date and place of the commission of each such practice have to be furnished
What is further the allegations of the corrupt practice have to be accompanied by an affidavit in support both of the allegations as well as the particulars thereof and if there are any schedules or annexure to the petition in support of the corrupt practice they have also to be signed by the petitioner and verified by him in the same manner as the petition
This is a mandatory requirement
The object of the said provisions is obvious
The party and it includes not only the returned candidate but all other candidates against whom the corrupt practice is alleged must have an adequate notice of the precise allegations made against him so that he has a proper opportunity to meet them
Section 97 states that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and the petition had been presented calling in question his election
The section requires that before the returned candidate or such other party as aforesaid gives such evidence he should have within 14 days from the date of the commencement of the trial given notice to the High Court of his intention to do so and that notice has to be accompanied by the statement and particulars required by Section 83 in the case of an election petition and has to be signed and verified in the like manner
We have already referred to the relevant requirements of Section 83 with regard to the furnishing of the particulars of the corrupt practice
Section 98 states that on the conclusion of the trial of an election petition the High Court shall make an order a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected
Then follows Section 99 of which what is relevant for our purpose in sub section 1 which reads as follows 99
Other orders to be made by the High Court 1 At 766 the time to making an order under section 98 the High Court shall also make an order a where any charge is made in the petition of any corrupt practice having been committed at the election recording i a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice and ii the names of the persons if any who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice and b fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid
Provided that a person who is not a party to the petition shall not be named in the order under sub clause ii of clause a unless a he has been given notice to appear before the high Court and to show cause why he should not be so named and b if he appears in pursuance of the notice he has been given an opportunity of cross examining any witness who has already been examined by the High Court and has given evidence against him of calling evidence in his defence and of being heard
 It is clear from the provisions of sub clause i and ii of clause a of sub section 1 that at the time of deciding the petition the Court has to record a finding that a corrupt practice is proved to have been committed and that it is committed by a particular person
The Court has not only to name the person but also the nature of the corrupt practice committed by him
If the person is a party to the petition it is not necessary to hear him separately before recording such finding
However when he is not a party to the petition before such serious finding is recorded against him he must have the same opportunity as the party to the petition to meet the allegations against him
In that respect he stands on the same footing as the party to the petition against whom such a finding is to be recorded
He cannot be 767 discriminated against and made to suffer any disadvantage because he is not a party to the petition
This is the precise object which is sought to be secured by the proviso to the Section
Section 107 of the Act states that the order of the High Court under Section 98 or Section 99 shall take effect as soon as it is pronounced by the High Court subject of course to the stay if any granted by the High Court itself or in appeal by the Supreme Court
Section 123 enumerates and defines the corrupt practices for the purposes of the Act
We are concerned in the present case with the corrupt practices mentioned in sub sections 3 and 3A of the said section
Those sub sections read as follows 3 The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion race caste community or language or the use of or appeal to religious symbols or the use of or appeal to national symbols such as the national flag or the national emblem for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause
3A The promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion race caste community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate
 It is clear from the aforesaid sub sections that each of them enumerates not a single corrupt practice but various distinct corrupt practices
They are as follows
Sub section 3 speaks of the corrupt practices of A the appeal i to vote or ii to refrain from voting for any 768 person on the ground of a his religion
b his race c his caste d his community or e his language Bi of the use of or ii of appeal to a religious symbols b national symbols such as the national flag or bb the national emblem either for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate
Likewise Sub section3A consists of different corrupt practices as follows i the promotion of or ii attempt to promote feeling of enmity or hatred between different classes of the citizens of India on ground of areligion b race c caste d community or e language either for the furtherence of the prospects of the election of that candidate or for prejudically affecting the election of any candidate
Hence merely by enumerating in the notice the numbers of sections viz 1223 and 1223A as is directed to be done by the impugned order the person summoned does not understand which of the various corrupt practices mentioned in the sections is alleged against him and what precise charge he has to meet
Section 8A of the Act states that the case of every person who is found guilty of a corrupt practice by an order under section 99 shall be submitted as soon as may be after such order takes effect by such authority as the Central Government may specify in this behalf to the President for determination of the question as to whether such person shall be disqualified and if so for what period
The period of disqualification is not to exceed 6 years from the date on which the order made in relation to him under Section 99 takes effect
Subsection 3 thereof requires the President to obtain the opinion of the Election Commission on such question and to act according to such opinion
The President exercises this power under Article 103 of the Constitution and the powers of Election Commission when such a reference is made by the President are governed by Section 146 of the act
769 12
A reading of all the aforesaid provisions together would show that the proceedings pursuant to the notice issued by the High Court under Section 99 of the Act are of a quasi criminal nature
It has also been held so by this Court in so many words in some of the decisions See DPMishra vs Kamal Narain Sharma  Ors   and Rashim Khan vs Khurshid Ahmed  Ors 1975 1 SCR 643
Where therefore a corrupt practice is alleged the trail of an election petition on such charge is of a quasi criminal nature and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years
What is further as pointed out above when the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of the commission of such practice it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice the notice should not apprise him of the precise charge against him and give him the full particulars thereof
Judged in the light of these requirements of law there is no doubt that the impugned order directing the issuance of notice as stated theren is extremely vague and defective to the point of being contrary to the provision of law
We have reproduced above the relevant portion of the order
The order i directs issuance of an omnibus notice against the appellants and one other personii states again in an omnibus manner that the Court is satisfied that the charges alleged in the petition of corrupt practices under Section 1233 and 1233A of the Act have been proved to have been committed by all of them iii further directs that each notice shall state that the person named in the notice shall have an opportunity of cross examining all witness who have given evidence against him and that he shall have a right calling evidence and of being heard
It then directs that to all the notices to be issued copies of a the petition and the written statement b oral deposition c all exhibits d the impugned order itself and e audio cassettes containing copies of Exhibits SS to YY should be annexed 770 15
The notices directed to be issued and which have accordingly been issued are defective in many respects
In the first instance they do not spell out the precise corrupt practice which each of the appellants is called upon to meet
As has been pointed out above Section 1233 does not refer to one corrupt practice but a variety of them
Yet the notice does not specify which particulars corrupt practice is sought to be brought home to each of the appellants
Secondly although the copies of the petition written statement etc are directed to be sent along with the notices the order does not direct the notices to state and therefore they do not state which of the portions of the petition written statement oral evidence documentary evidence and audio cassettes is being relied upon to sustain which of the charges and against which of the appellants
As pointed out earlier it is a pre condition for the trial of the charges of the corrupt practices that the person called upon to face the charge should be apprised in advance of the precise charge or charges against him and also the precise evidence oral or documentary which is sought to be relied upon in support of the said charge or each of the said charges
It is obvious that the kind of notice which is directed to be issued by the impugned order is defective in all these respects and conveys nothing to the appellants
The impugned order and the notices issued pursuant to it falling short of the requirement of law are therefore liable to be struck down
It is true that this Court in its order dated December 1 1988 had refused to interfere with a similar order and had held that such a notice is not against the provisions of the law
It has however to be remembered in this connection that even while doing so the Court had given an opportunity to the petitioner therein to make an application before the High Court for specifying those portions of the speeches of the petitioner which prima facie according to the High Court came within the purview of sub sections 3 or 3A of Section 123
The Court had further directed that if any such application is made the High Court should dispose it of in accordance with law
It appears that consequent upon the direction an application was made by the petitioner for specifying the portions of the speeches which were sought to be relied upon to sustain the charges under sub sections 3 and 3A
The High Court held that the provisions of Section 99 did not require it to analyse the evidence and specify either in the notice under the said section or at any time prior to hearing the person to whom it is issued what portion or portions thereof seemed in its view prima facie to make out the case which he was called upon to answer
771 This the High Court did in spite of the fact that it recorded correctly that the person to whom a notice under Section 99 is issued is entitled to be put in the same position as the elected candidate and that his position can be no better
We have pointed out earlier that in fact the vague notice which is directed to be issued by the impugned order does in fact place the person against whom the notice is issued in a worse position than not only the elected candidate but other persons who are parties to the election petition
It is with a view to see that he is not placed in a disadvantaged position as against the parties to the petition that it is necessary to apprise him also of the details of the specific charges against him in advance
We have also pointed out that the trial being of a quasi criminal nature and the consequence of the named person being serious he is entitled to this minimum safeguard
The view taken by the High Court was therefore obviously wrong
Unfortunately the special leave petition filed even against that order of the High Court came to be dismissed in limine and without a speaking order
We are of the view that for the reasons which we have stated above neither the order of December 1 1988 nor the later non speaking order of January 23 1989 lays down the correct position of law and should be deemed to have been overruled by this decision
However we make it clear that these observations will not in any way affect the validity of the decision rendered by the High Court in that election petition being Election Petition No 1 of 1988
We further make it clear that the law laid down here will operate only prospectively ie to final orders of indictment passed under Section 99 of the Act hereafter
In the view we have taken above we should set aside the impugned order and the notices issued in each case in pursuance of the said order
However we are of the view that it is not necessary to do so
Instead we direct that the appellants will appear before the High Court on 25th March 1991 and the High Court will on that day or on such other day as it may deem convenient issue proper notices to the appellants in the light of the law laid down and then proceed to hear and dispose of the notices in accordance with law
The appeals are allowed accordingly
In the circumstances of the case there will be no order as to costs
RSS Appeals allowed


Summary:
The two questions for determination in this appeal were 1 whether a settlement under section 8A of the Taxation of Income Investigation Commission Act 1947 30 Of 1947 made after the commencement of the Constitution was constitutionally valid and 2 whether the waiver of a fundamental right was permissible under the Constitution
The appellant s case was on July 22 1948 referred by the Central Government under section 51 of the Act to the Investigation Commission
for investigation and report
The Commission directed the authorised official under section 6 of the Act to examine the appellant s accounts
He submitted his final report by the end of 1953
The Commission considered the report heard the assessee and came to the conclusion that Rs 447915 had escaped assessment
Thereupon the appellant on May 20 1954 applied to the Commission for a settlement of his case under section 8A of the Act agreeing to pay Rs 350000 by way of tax and penalty at the concessional rate
The Commission reported to the Central Government approving of the settlement the Central Government accepted it and it was recorded by the Commission
The Central Government directed the recovery of the said amount under section 8A2 of the Act
The appellant was permitted to make payments by monthly instalments of Rs 5000 and the total amount thus paid up to September 8 1957 aggregated to Rs 128000
In the meantime the Income Tax Officer issued a certificate and certain properties of the appellant were attached
Relying on the decisions of this Court in Suraj Mall Mohta and Co vs A V Visvanatha Sastri  and M Ct
Muthiah vs The Commissioner of Income tax Madras   the appellant applied to the Commissioner of Income tax challenging the validity of the settlement made under section 8A of the Act on the ground that section 51 Of the Act on which it was founded had been declared void by this Court and claimed that his properties might be released from attachment and the amount paid under the settlement might be refunded to him
 On January 29 1958 the Commissioner of Income Tax sent a reply to the appellant maintaining that the settlement was valid and 529 that the appellant was bound thereunder to pay up the arrears of instalments and requesting him to continue to pay in future
Against this decision of the Commissioner of Income Tax the
appellant came up to the Supreme Court by special leave
It was contended on behalf of the respondent that the Act laid down two distinct and separate procedures one for investigation and the other for settlement and it was the former alone and not the D latter that was affected by the decisions of this Court
and that the appellant by voluntarily entering into the settlement had waived his fundamental right founded on article 14 of the Constitution
Held Per Curiam that both the contentions must fail
It was not correct to say that the Taxation of Income In vestigation Commission Act 1947 laid down two different procedures one for investigation and assessment under section 82 of the Act and another for settlement under section 8A of the Act and assessment in terms of such settlement and that while the decision of this Court in M Ct
Muthiah vs The Commissioner of Incometax Madras declaring section 51 of the Act to be discriminatory and therefore void affected only the former procedure and not the latter
The Act laid down but one procedure and in entertaining a proposal for settlement as in the investigation itself the Commission exercised the same jurisdiction and powers and followed the one and the same procedure as laid down by sections 5 6 and 7 Of the Act
Since the settlement in the instant case was no exception to that rule it was covered by the decision and must be held to be violative of article 14 Of the Constitution
M Ct
Muthiah vs The Commissioner of Income tax Madras   applied
The observations made in the majority judgment of this Court in Syed Qasim Razvi vs The State of Hyderabad 1953 SCR 589 must be kept strictly confined to the special facts of that case and had no application to the facts of the present case
Syed Qasim Razvi vs The State of Hyderabad 1953 SCR 589 held inapplicable
Per Das C J and Kapur J
There could be no waiver of the fundamental right founded on article 14 Of the Constitution and it was not correct to contend that the appellant had by entering into the settlement under section 8A of the Act waived his fundamental right under that Article
Article 14 was founded on a sound public policy recognised and valued all over the civilised world its language was the language of command and it imposed an obligation on the State of which no person could by his act or conduct relieve it
As it was not strictly necessary for the disposal of this case the question whether any other fundamental right could be waived need not be considered in this connection
Laxamanappa Hanumantappa jamkhandi vs The Union of India   Dewan Bahadur Seth Gopal Das Moht 67 530 vs The Union of India 1955 1 SCR773 Baburao Narayanrao Sanas vs The Union Of India 1954 26 ITR 725 Subedar vs State AIR 1957 All
396 and Pakhar Singh vs The State AIR 1958 Punj
294 distinguished and held inapplicable
Per Bhagwati and gubba Rao jj
There could be no waiver not only of the fundamental right enshrined in article 14 but also of any other fundamental right guaranteed by Part III of the Constitution
The Constitution made no distinction between fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of the public policy
There could therefore be no justification for importing American notions or authority of decided cases to whittle down the transcendental character of those rights conceived in public interest and subject only to such limitations as the Constitution had itself thought fit to impose
Article 132 was in terms a constitutional mandate to the State in respect of all the fundamental rights enacted in Part III of the Constitution and no citizen could by waiver of any one of them relieve the State of the solemn obligation that lay on it
The view expressed by Mahajan C J in Behram Khurshed Pesikaka vs The State of Bombay  correctly laid down the law on the point
Since the arguments in the instant case had covered the entire field of fundamental rights there was no reason why the answer should be confined to article 14 alone
Behram Khurshed Pesikaka vs The State of Bombay  State of Travancore Cochin vs The Bombay Co Ltd and The State of Bombay vs R M D Chamarbaugwala   referred to
Per section K Das J It seems clear that article 13 itself re cognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void and exercise of legislative power in contravention of a restriction or check on such power which will make the law void to the extent of the inconsistency or contravention therefore the mere use of the word  void  in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of the Constitution
Behram Khurshed Pesikaka vs The State of Bombay  considered
Bhikaji Narain Dhakyas vs The State of Madhya Pradesh   M Ct
Muthiah vs The Commissioner of Income tax Madras  and The State of Bombay vs RMD Chamarbaugwala   referred to
There was nothing in the two preambles to the Indian and the American Constitutions that could make the doctrine of waiver applicable to the one and not to the other since the doctrine 531 applied to the constitutional rights under the American Constitution there is no reason why it should not apply to the fundamental rights under the Indian Constitution
Case law considered
But it must be made clear that there is no absolute rule or one formulated in the abstract as to the applicability of that doctrine to fundamental rights and such applicability must depend on 1 the nature of fundamental right to which it is sought to be applied and 2 the foundation on the basis of which the plea is raised
The true test must be whether the fundamental right is one primarily meant for the benefit of individuals or for the benefit of the general public
Where therefore the Constitution vested the right in the individual primarily intending to benefit him and such right did not impinge on the rights of others there could be a waiver of such right provided it was not forbidden by law or did not contravene public policy or public morals
As in the instant case the respondents who had raised the plea had failed to prove the necessary facts on which it could be sustained the plea of waiver must fail
Per Subba Rao J Apart from the question as to whether there could be a waiver in respect of a fundamental right section 51 of the Taxation of Income Investigation Commission Act 1947 having been declared void by this Court in M Ct
Muthiah vs The Commissioner of Income tax Madras as being violative of the fundamental right founded on Art  14 Of the Constitution and such decision being binding on all courts in India the Commissioner of Income tax had no jurisdiction to continue the proceedings against the appellant under that Act and the appellant could not by a waiver of his right confer jurisdiction on him
No distinction could be made under article 131 of the Con stitution between the constitutional incompetency of a legislature and constitutional limitation placed on its power of legislation for a statute declared void on either ground would continue to be so so long as the inconsistency continued
As the inconsistency of section 51 of the Act with article 14 continued it must continue to be void
Keshavan Madhava Menon vs The State of Bombay 1951 SCR 228 Behram Khurshed Pesihaka vs State of Bombay and Bhikaji Narain Dhakras vs State of Madhya Pradesh   referred to