Appeal No 156 of 1954
Appeals by Special Leave against the Judgment and Order dated the 24th December 1953 of the Election Tribunal Gwalior Madhya Bharat in Election Petition No 263 of 1952
NC Chatterjee section K Kapur and Ganpat Rai with him for the appellants
CK Daphtary Solicitor General for India section P Varma with him for the respondents Nos
I and 5
CK Daphtary Solicitor General for India C P Lal with him for respondent No 4 1954
September 28
The Judgment of the Court was delivered by BOSE J This is an appeal from a decision of the Election Tribunal of Gwalior in which the petitioner an elector sought to set aside the elections of the appellants respondents 1 and 2 to the petition who were the successful candidates
The constituency is Bhilsa a double member constituency in Madhya Bharat
The petitioner seems to have been fighting on behalf of the 6th and 7th respondents to the petition because one of his prayers is that they be declared to have been duly elected in place of the appellants respondents 1 and 2
The petitioner succeeded and the Tribunal declared the elections of the two appellants to be void and further declared that the 6th and 7th respondents had boon duly elected 609 We will first consider that part of the decision which declares the election of the two appellants to be void
The Tribunal finds among other things that the  appellant No 1 1st respondent published certain pamphlets which contain statements listed as a b c e f and g by the Tribunal
The Tribunal holds that these statements are false and that the 1st appellant 1st respondent did not believe them to be true
It also holds that these statements reflect on the personal character and conduct of the 6th respondent and are reasonably calculated to prejudice his prospects in the election
These findings were contested and the learned counsel for the appellants contended that the attack was on the public and political character of the 6th respondent and was a legitimate attack
We do not intend to examine this as a Court of appeal because this is a special appeal and all we are concerned to see is whether a Tribunal of reasonable and unbiased men could judicially reach such a conclusion
We have had some of these pamphlets read out to us and we are of opinion that the conclusion of the Tribunal is one which judicial minds could reasonably reach
We decline to examine the matter further in special appeal
Under the law the decision of the Tribunal is meant to be final
That does not take away our jurisdiction but we will only interfere when there is some glaring error which has resulted in a substantial miscarriage of justice
On those findings a major corrupt practice on the part of the 1st respondent 1st appellant here under section 1235 of the Representation of the People Act 1951 is established
The next finding concerns the 2nd respondent appellant No 2
The Tribunal finds that he made a systematic appeal to Chamhar voters to vote for him on the basis of his caste
There is evidence to support this finding
The leaflets marked N and 0 place that beyond doubt
This constitutes a minor corrupt practice under section 1245 of the Act
Both these provisions namely sections 1235 and 1245 were challenged as ultra vires article 191a of the Constitution It was contended that article 2451 78 610 prohibits the making of laws which violate the Constitution and that the impugned sections interfere with a citizen s fundamental right to freedom of speech
There is nothing in this contention
These laws do not stop a man from speaking
They merely prescribe conditions which must be observed if he wants to enter Parliament
The right to stand as a candidate and contest an election is not a common law right
It is a special right created by statute and can only be exercised on the conditions laid down by the statute
The Fundamental Rights Chapter has no bearing on a right like this created by statute
The appellants have no fundamental right to be elected members of Parliament
they want that they must observe the rules
If they prefer to exercise their right of free speech outside these rules the impugned sections do not stop them
We hold that these sections are intra vires
In addition to these findings the Tribunal found that both the appellants committed an illegal practice within the meaning of section 1253 in that they issued a leaflet and a poster which did not have the name of the printer on them
This is a pure question of fact
The result of committing any corrupt practice is that the election of the candidate is void under section 1002b
It is not necessary to prove that the result of the election was materially affected thereby because clause b is an alternative that stands by itself
All that need be proved is that a corrupt practice has been committed and that the Tribunal finds to be the fact
The Tribunal was accordingly justified in declaring the election of the first appellant to be void
In addition to this the Tribunal found that the corrupt practice committed by the second appellant respondent No 2 also materially affected the result of the election
This was challenged but we need not go into that because the finding that the second appellant committed a minor corrupt practice and also an illegal practice is clear and so his case falls under clause a of sub section 2 of section 100
Sub section 2a so far as it is material here runs    if the Tribunal is of opinion 611 athat the election of a returned candidate has been procured or induced or the result of the election has been materially affected by any corrupt or illegal practice the Tribunal shall declare the election of the returned candidate to be void
 The Tribunal finds as a fact that the second appellant s election was procured by a corrupt practice
His case therefore falls within the first of the three alternatives envisaged by clause a so it is not necessary to enquire whether it also falls under the third
We hold that this election was also rightly declared to be void
That disposes of the first and second appellants respondents 1 and 2
We now turn to respondents 6 and 7 to the petition
They are the 4th and 5th respondents before us Ramsahai and Sunnu La
The Tribunal acting under section 101 b declared them to be duly elected
Here we are of opinion that the Tribunal was wrong
Before this can be done it must be proved that  but for the votes obtained by the returned candidate by corrupt or illegal practices such other candidate would have obtained a majority of the valid votes
 The Constituency was a double member constituency
The following stood for the General Constituency and obtained the votes shown against them Jamuna Prasad Mukhariya Respt No 1 13669 Keshav Shastri Respt No 3 1999 V N Sheode Respt No 4 1350 Ram Sabai Respt No 6 12750 The Tribunal says that the difference invotes between respondents I and 6 is 919
We presume that this is meant to show that the voting between them was close
From that the Tribunal jumps to the following conclusion  Considering the scandalous nature of the false statement regarding respondent No 6 and the mode 612 of systematic appeal on the basis of caste made by respondent No 2 we have no doubt in our minds that respondent No 1 got more votes simply because of corrupt practices and if these
corrupt practices had not been there respondent No 6 undoubtedly would have obtained a majority of valid votes
 This in our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above
There is nothing to show why the majority of the 1st respondent s voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents
An exactly similar process of reasoning was followed in the case of the 7th respondent
He was a Scheduled Caste candidate and the voting there was as follows Chaturbhuj Jatav Respt
No 2 12452 Hira Khusla Chamar Respt
5 601 Sunnulal Respt 7 10889 Here again there is no basis for concluding that those who voted for the 2nd respondent would if they had not done so have preferred the 7th respondent to the 5th
We set aside this part of the order
The result is that the appeal fails in so far as it attacks the Tribunal s declaration voiding the election of the two appellants but succeeds against that part of the order which declares the 6th and 7th respondents to have been elected
In the circumstances there will be no order about costs in either Court
Order accordingly


Summary:
Held that sections 1235 and 1245 of the Representation of the People Act XLIII of 1951 are not ultra vires article 191 a of the Constitution